Barack Obama Ballot Challenge Proceeding Forward in the NJ Supreme Court

Wednesday, August 8, 2012

Barack Obama Ballot Challenge Proceeding Forward in the NJ Supreme Court

               Barack Obama Ballot Challenge Proceeding Forward in the
                                               NJ Supreme Court

                                            By Mario Apuzzo, Esq.
                                                August 8, 2012

The candidate Barack Obama presidential election ballot challenge in New Jersey is proceeding forward. On July 2, 2012, I filed on behalf of my clients, Nicholas E. Purpura and Theodore T. Moran, a Petition for Certification with the New Jersey Supreme Court. See my post entitled, Purpura and Moran File Petition for Certification With the NJ Supreme Court in Obama NJ Ballot Challenge , with 439 comments, accessed at http://puzo1.blogspot.com/2012/07/purpura-and-moran-file-petition-for.html . The Petition for Certification may be read here: http://www.scribd.com/doc/98923880/Purpura-Moran-Petition-for-Certification-FILED-7-2-12 .

On July 16, 2012, candidate, Barack Obama, through his attorney, Angelo J. Genova, Esq., filed his Opposition Letter Brief which can be read here, http://www.scribd.com/doc/102405426/Purpura-Moran-Opposition-Letter-Brief-by-Obama-to-NJ-Supreme-Ct-7-16-12 . On July 19, 2012, the New Jersey Secretary of State, through the New Jersey Attorney General (by Deputy Attorney General Alan C. Stephens) filed her Opposition Letter Brief which can be read here, http://www.scribd.com/doc/102405496/Purpura-Moran-Opposition-Letter-Brief-of-SOS-to-NJ-Supreme-Ct-7-19-12 .

Today, Wednesday, August 8, 2012, I filed with the Supreme Court petitioners’ Reply Letter Brief. A copy of the Reply Letter Brief can be read at http://www.scribd.com/doc/102405635/Purpura-Moran-Reply-Letter-Brief-to-NJ-Supreme-Ct-FILED-8-8-12 .

The New Jersey ballot challenge case is now ready for submission to the Chambers of the New Jersey Supreme Court Justices for decision on whether the Court will grant our Petition for Certification. A Petition for Certification shall be granted on the affirmative vote of 3 or more justices. If certification is granted, the matter shall be deemed pending on appeal in the Supreme Court and the Court would then decide the appeal on the briefs, appendices, and transcript filed in the Appellate Division. The Supreme Court may render a decision with or without oral argument.

In the Petition for Certification, we argue that our petition presents questions of general importance which have not been but which should be settled by the Supreme Court and that the interest of justice requires that the Supreme Court grant certification. A democratic majority does not have the constitutional right to elect a President who is not constitutionally eligible. Hence, whether a person running for President is an Article II “natural born Citizen” and constitutionally eligible for that office is a question of great public importance. What role the State of New Jersey through the Secretary of State (“SOS”) has in vetting candidates who are running for the Office of President is also a question of great public importance. Whether New Jersey is responsible for determining the eligibility of its presidential candidates is a significant question for the state to answer. For sure, how best to protect the integrity of New Jersey elections for the Office of President is a question of great public importance to the State of New Jersey, which is guaranteed by Article IV, Section 4 of our Constitution a republican form of government. These questions and their answers are special reasons enough for this Court to grant certification.

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” and be eligible to be President. But it also provides that for all those born after the adoption of the Constitution, one must be a “natural born Citizen” to be eligible to be President. That means that today, anybody who is just a “citizen of the United States” and not a “natural born Citizen” is not eligible to be President.

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 and its republican principles and of no other nation. It was also put in place to keep all vestiges of monarchial rule and influence out of the 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 and “subject to the jurisdiction thereof.” It does not give anyone the status of a “natural born Citizen.” When the Founders and Framers inserted the “natural born Citizen” clause in the Constitution, there was no Fourteenth Amendment. Hence, they surely did not write the clause into the Constitution having in mind any citizenship standard that is contained in the Fourteenth Amendment. And there does not exist any evidence that the Fourteenth Amendment repealed or amended the Founders’ and Framers’ definition of an Article II “natural born Citizen.” Hence, Article II, Section 1, Clause 5 and the Fourteenth Amendment stand as two separate and distinct constitutional provisions which provide two different constitutional citizenship standards.

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. at 167-68. Minor left open the question of whether a child born “within the jurisdiction” of the United States to alien parents is a “citizen of the United States” under the Fourteenth Amendment. As we have seen, this is a different standard as that which applies to defining a “natural born Citizen.”

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 over them and Wong when Wong was born. Again, since the Fourteenth Amendment neither repealed nor amended Article II, Section 1, Clause 5 “natural born Citizen” clause, Wong defined a “citizen of the United States” under the Fourteenth Amendment, not a “natural born Citizen” under Article II. In fact, Wong’s specific holding uses the phrase “citizen of the United States,” not “natural born Citizen.” Hence, using that amendment to find someone a “citizen of the United States,” regardless of whether that person is a “citizen” from the moment of birth, has no direct bearing on the definition of an Article II “natural born Citizen.” After all, Article II says “natural born Citizen,” not “born Citizen,” and is applied for presidential eligibility. What the Fourteenth Amendment can do with reference to a “natural born Citizen” is increase the pool of parents who become “citizens of the United States” and give birth to “natural born Citizens.”

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” under the Fourteenth Amendment with a “natural born Citizen” under Article II. A “natural born Citizen,” being the standard for the President and the Commander in Chief of the Military, requires allegiance and citizenship only to the United States from the moment of birth. A Fourteenth Amendment “citizen of the United States” from birth does not have the same allegiance requirement and can even be born with dual and conflicting allegiances, a condition which the Founders and Framers did not permit future Presidents and Commanders to have when born. They were very specific as is evident from the plain text of Article II, Section 1, Clause 5, that after the adoption of the Constitution, one had to be a “natural born Citizen,” and not just a “Citizen of the 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.” Obama, even if born in Hawaii, cannot be a “natural born Citizen.” Because his father was not a U.S. citizen when Obama was born, Obama, who wants to be President and Commander in Chief of the Military, while he could have been born a “citizen of the United States” if born in Hawaii, was also born in full allegiance and citizenship of Great Britain and at age two also of Kenya. He was not born within the full and complete allegiance of the United States, an indispensable birth condition for one wanting to be President and Commander of the Military. Hence, Obama is not and cannot be an Article II “natural born Citizen.” See David Ramsay, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789) (citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6; St. 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 (“These civil rights [which included the right to be elected President] may be inherited, or acquired, in the United States: they are acquired by a foreigner who is naturalized; they are inherited by all whose parents, at the time of their birth, were citizens”).

What this means is that since Obama is neither an Article II “natural born Citizen” nor a “Citizen of the United States, at the time of the Adoption of this Constitution,” under Article II, Section 1, Clause 5 he is not eligible to be President and Commander in Chief of the Military.

I will update this post as soon as I receive new information.

Mario Apuzzo, Esq.
August 8, 2012
http://puzo1.blogspot.com
####

Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved

602 comments:

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MichaelN said...: Important to note that in 17th century England, an alien (as we use the term today) really meant alien-born and not necessarily born on foreign soil.

That is, it did not only refer to those who were non-native-born; it also referred to those who were born under "foreign allegiance", yet native-born.

Lord Coke (Calvin's case)

"....and so in case of an alien born, you must of necessity have two several ligeances"

Ergo: Dual allegiance at birth = alien-born.

Here's more from English common law, per Lord Coke in Calvin's case (translated from the Latin in footnote 151....

"[151. ][Ed.: An ALIEN born is of foreign birth or FOREIGN ALLEGIANCE, and is also called peregrinus (foreigner), alien, exotic, stranger, etc. A stranger is a subject who is born outside the land, that is, outside the king’s power.]"

Here's some more from English common law, per Lord Coke in 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 OF A SUBJECT, nor under the protection of the King."

Nowhere in the 17th century English common law, was it held that native-birth alone sufficed to make an English "natural born subject".

For a child to be born an English "natural born subject" or a "subject born", that child MUST have been born "under the ligeance of a subject".

Place of birth was NOT enough.; September 24, 2012 at 1:55 AM
cfkerchner said...: U.S. Supreme Court Reviews Obama Eligibility Challenge Petition Monday 24 Sep 2012 -- Welden, Swensson, and Powell v Obama:
http://wp.me/pPOcT-2qb; September 24, 2012 at 2:49 AM
MichaelIsGreat said...: Hello Mr. Appuzo,

Are we going to have a final decision on your case before the new President of the USA starts at his new position? Or after such an event?
I am fed up really with the judicial system that does not take any decision on matters of VITAL national importance such as your case on Obama. Either by not applying the law or by avoiding full discovery to get to the truth once and for all. The truth will never ever be uncovered if full discovery is not granted concerning Obama on ALL the documents related to him.
And full discovery is only the first step. Full testing and checking by experts must also be done concerning Obama's long form birth certificate.

And I am not even starting a discussion on the fact that Obama is NOT a "natural born citizen" according to the Constitution of the USA.

Many thanks for your legal action to defend the Constitution of the USA against Obama's trampling of the Constitution of the USA!!!; September 24, 2012 at 2:51 PM
MichaelN said...: Notice that all the slimy traitors and proponents of the lying usurper Obama, i.e. John Woodman, NBC, RealityCheck, Andy, Smstrauss, Ballantine, Linda, 4zoltan, gorefan, etc, etc have run away and hidden when confronted with the truth, i.e. that ..........

NOWHERE in the 17th century English common law, was it held that native-birth alone sufficed to make an English "natural born subject".

For a child to be born an English "natural born subject" or a "subject born", that child MUST have been born "under the ligeance of a subject".

Place of birth was NOT enough.

An alien- born was one who was native-born, but to a father of foreign allegiance.

Duel allegiance at native-birth equated to alien-born.

IF the framers were guided by the 17th century English common law, then for a native-born child to be a US "natural born Citizen", that child MUST of necessity be "born under the ligeance of a" US citizen.

All I can hear from the traitors' corner are crickets chirping and the gnashing of teeth.; September 24, 2012 at 7:20 PM
cfkerchner said...: Secretary of State Hillary Clinton admitted Founders of U.S. were Inspired by writings of Emer de Vattel:
http://www.scribd.com/doc/63746242/Secretary-of-State-Hillary-Clinton-admits-Founders-of-U-S-were-Inspired-by-Vattel

What Emer de Vattel has to say about the "natural law" legal term of art, "natural born Citizen" which term was incorporated into Article II Section 1 Clause 5 of our U.S. Constitution, the presidential eligibility clause ... and Obama does not meet it:
http://www.lonang.com/exlibris/vattel/vatt-119.htm

CDR Charles Kerchner (Ret)
Lehigh Valley PA USA
ProtectOurLiberty.org; September 25, 2012 at 1:53 AM
Mick said...: cfkerchner said...
U.S. Supreme Court Reviews Obama Eligibility Challenge Petition Monday 24 Sep 2012 -- Welden, Swensson, and Powell v Obama:
http://wp.me/pPOcT-2qb

Commander Sir,

This Georgia case was hamstrung from the start, and has been strung along in order to inflict max demoralization effect.

1) There is a venue requirement that makes it known that the contest statute is not contemplated for Presidential Primaries. Venue must be defendants Home district.

"O.C.G.A. 21-2-523 (2010)
21-2-523. Jurisdiction and general pretrial proceedings; notification of proceedings; selecting administrative judge; compensation of presiding judge

(a) A contest case governed by this article shall be tried and determined by the superior court of the county where the defendant resides, except that a municipal contest case shall be tried and determined by the superior court of the county where the city hall is located"

Obviously a contest of election for Georgia cannot be filed in Wash. DC.

2) There is a time factor of 5 DAYS AFTER the certification of the Primary. This case was filed BEFORE the Primary.

"O.C.G.A. 21-2-524 (2010)
21-2-524. Filing and allegations of petition to contest primary or election; service of petition; verification; notice of proceedings to answer petition; service of special process; amendment

(a) A petition to contest the result of a primary or election shall be filed in the office of the clerk of the superior court having jurisdiction within five days after the official consolidation of the returns of that particular office or question and certification thereof by the election official having responsibility for taking such action under this chapter."

No case that does not strictly adhere to state contest of election statutes will be successful, but they will be strung along for max demoralization effect.; September 25, 2012 at 7:51 AM
Mario Apuzzo, Esq. said...: Given our basic constitutional foundation relative to presidential eligibility, the issue is whether Barack Obama is an Article II “natural born Citizen,” not whether he is a Fourteenth Amendment “citizen of the United States.” I have shown in my pleadings and briefs filed in the courts and on this blog that the Founders and Framers knew quite well the difference between one who was a “natural born Citizen” and one who was a “citizen of the United States.” They provided in Article II, Section 1, Clause 5 that for those born before the adoption of the Constitution, being a “citizen of the United States” did not disqualify one from being eligible to be President. But for those born after its adoption, not to be disqualified from such eligibility, one had to be a “natural born Citizen.” We can see that the Founders and Framers attached a critical constitutional distinction between the two classes of “citizens” and importance to the meaning of a “natural born Citizen,” making it a necessary status of one wanting to be President and Commander in Chief of the Military in the future. Congress and our U.S. Supreme Court has always recognized and confirmed this constitutional distinction. In this connection, Minor v. Happersett (1875) defined a “natural born Citizen” under American “common law,” i.e., a child born in a country to parents who were “citizens” of the country at the time of the child’s birth, and U.S. v. Wong Kim Ark (1898) defined a “citizen of the United States” at birth under the Fourteenth Amendment, i.e. including a child born in the United States to domiciled and resident alien parents.; September 25, 2012 at 12:37 PM
Mario Apuzzo, Esq. said...: In discussing Wong Kim Ark, Obama supporters say that the Court went into the meaning of natural born citizen during the case. They then say that the Court held Wong to be an Article II "natural born Citizen."

This is a misstatement of Wong Kim Ark. Rather, what the Court did is when discussing a "natural born Citizen," it cited and quoted Minor v. Happersett (1875)'s American "common-law" definition. When defining a "citizen of the United States" at birth under the Fourteenth Amendment, it reviewed at length the definition of an English "natural born subject" under the English common law. With the aid of that English common law, it then held that Wong was a "citizen of the United States" at birth under the Fourteenth Amendment. It did not hold that Wong was an Article II "natural born Citizen."; September 25, 2012 at 2:54 PM
Texoma said...: Mario,

Thanks. I suppose then that it was the length of stay of a foreigner in England that mattered? A foreign merchant’s stay in England was brief – perhaps just a few days or a few weeks in duration, whereas a foreign student’s stay was at least a few months in duration. Thus the foreign merchant would not be an alien in amity, but would remain a foreigner, whereas the foreign student would be an alien in amity. Hence the England-born child of a merchant (a foreigner) would not be a natural born subject, whereas the England-born child of a foreign student (an alien in amity, an alien subject) would be a natural born subject. Is this your understanding?; September 25, 2012 at 10:10 PM
Mario Apuzzo, Esq. said...: Texoma,

Where do you find it written in the English common law that, as you have stated, the English distinguished for allegiance purposes between an alien student studying in England and an alien merchant present in England for business purposes, both finding themselves temporarly present in the King’s dominions?; September 25, 2012 at 11:19 PM
MichaelN said...: Texoma said...
"I suppose then that it was the length of stay of a foreigner in England that mattered? A foreign merchant’s stay in England was brief – perhaps just a few days or a few weeks in duration, whereas a foreign student’s stay was at least a few months in duration. Thus the foreign merchant would not be an alien in amity, but would remain a foreigner, whereas the foreign student would be an alien in amity. Hence the England-born child of a merchant (a foreigner) would not be a natural born subject, whereas the England-born child of a foreign student (an alien in amity, an alien subject) would be a natural born subject. Is this your understanding?"

Hope you don't mind me responding to your question Texoma.

In 17th century English common law, per Lord Coke's report of Calvin's case, EVERY MALE who was an alien-born and visiting England in amity, no matter how long their stay (save foreign, diplomats, royalty, and enemy invaders)was a "subject" by local allegiance.

There was no mention of students or merchants, nor was there any apparent distinction for these professions to be separate from all other alien-born friendly visitors with regard to local allegiance.; September 26, 2012 at 2:05 AM
Texoma said...: Mario and Michael,

I did not say that I had a reference to English common law regarding the status of foreign students in England. I do however have a reference from Blackstone describing merchants as foreigners:

“And as during the continuance of any safe-conduct, either express or implied, the foreigner is under the protection of the king and the law; and, more especially, as it is one of the articles of magna carta, that foreign merchants shall be intitled to safe-conduct and security throughout the kingdom; there is no question but that any violation of either the person or property of such foreigner may be punished by indictment in the name of the king.” – Blackstone’s “Book The Fourth” Chapter 5.

The duration of a merchant’s stay in England was temporary and brief, and occurred such that he could conduct business. The duration of a foreign student’s stay in England was also temporary, but of longer duration, for the purpose of attaining a college degree -- which could be argued is the “business” of the foreign student, since he is purchasing a service (an education).

So, if a merchant, briefly staying in England to conduct business was treated as a foreigner, would a foreign student (staying in England for his “business” of attaining a college degree) also be treated as a foreigner? Both of you have given reasoned arguments that the foreign student would not be considered a foreigner, but rather an alien subject (alien in amity) with a local allegiance to the English king. Hence, a child born in England to a foreign student (such as Obama Senior, had he attended Oxford University in the 18th century) would be a natural born subject.

So, it could be that foreign students, whose temporary stay and business in England was to purchase an education, were considered in a sense as merchants (purchasers and sellers of goods), but because of the length of their stay, the foreign students owed a local allegiance and were considered alien subjects. Or, it could be that foreign students were considered to possess a local allegiance to the English king for the privilege of studying at an English university, regardless of the temporary nature of their stay in England.; September 27, 2012 at 12:55 AM
Mick said...: Allegiance by legal inhabitance (legal residence) is a law of nations concept (See Twiss, Law of Nations in Peace; and The Venus), upon which Wong Kim Ark was based--- that the temporal allegiance formed by legal inhabitance (which was only as long as the resident alien was domiciled) made their children "subject to the jurisdiction" of the US, and thus citizens by the operation of the 14th Amendment. But they certainly were not natural born Citizens, "for this child (if born of an alien legal resident) is as much a citizen as the natural born child of a citizen." (See 169 US 649, 693); September 27, 2012 at 9:50 AM
Mario Apuzzo, Esq. said...: William Blackstone divided the people into “aliens, denizens, and natives.” 1 William Blackstone, Commentaries 366 (1765). He did not use the clause “natural born subject” in his nomenclature. He then stated that the “first and most obvious division of the people is into aliens and natural-born subjects.” Id. at 366. He considered all those born within the King’s dominions and within the allegiance of and therefore under his protection “natural born subjects.” Id. at 366; 373. He considered all aliens, if not ambassadors or military occupiers, present within the King’s dominions “subjects,” even without such alien taking any oath of allegiance or fealty. Id. at 369. They were “subjects” because they owed the King a local but temporary allegiance. Id. at 370. These aliens remained “subjects” and owed that temporary and local allegiance to the King as long as they continued to be physically present within his dominions. Id. These aliens owed the King that local but temporary allegiance because the King, while those aliens were physically present in his dominion, owed them protection. Id.

Blackstone maintained that the “children of aliens, born here in England, are, generally speaking, natural-born subjects (8) [8 Unless the alien parents are acting in the realm as enemies; for my Lord Coke says, it is not caelum nec solum [climate nor soil], but their being born within the allegiance, and under the protection of the king. 7 Co., 18. a.], 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 an alien.” (9) [9 The late Vinerian professor informs us, that, ‘in this respect there is not any difference between our laws those of France. In each country, birth confers the right of ‘naturalization.’ 1 Woodd. 386.”]. Id. at 373.

Vattel’s “Section 214“Naturalisation,” is instructive in this regard. This section provided: "Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner."

I have maintained that citizenship conferred upon a child born in the United States to alien parents is the product of naturalization at birth which automatically confers upon that child at birth the status of a U.S. “citizen.” The Fourteenth Amendment calls this class of citizenship “citizen of the United States” at birth. This class of citizenship is to be distinguished from the class Article II calls “natural born Citizen,” who is born in the United States of “citizen” parents and who needs no naturalization at birth for such status. Lord Coke in Calvin’s Case; the world-renowned, Emer de Vattel; the learned Vinerian Professors of English common law, William Blackstone (1758–1766) and Richard Wooddeson (1777–1793); and founder and jurist St. George Tucker, all recognized that mere birth in the country to alien parents under English common law conferred the birthright to naturalization.; September 27, 2012 at 11:03 AM
MichaelN said...: Texoma, I think you are reading too much into Blackstone's stuff.

It didn't matter whether a friendly alien-born, visiting, was a student or a merchant.

According to Lord Coke per Calvin's case, which we know is the benchmark case on the matter of alien-born and subject born, a "foreigner" is merely another name for an "alien-born".

Here from Calvin's case, taken from the footnote 151, which translates the Latin....

"Alienigena est alienae gentis seu alience ligeantiae, qui etiam |[16 b] dicitur peregrinus, alienus, exoticus, extraneus, &c. Extraneus est subditus, qui extra terram, i.e. potestatem regis natus est.151"

"[151. ][Ed.: An alien born is of foreign birth or foreign allegiance, and is also called peregrinus (foreigner), alien, exotic, stranger, etc. A stranger is a subject who is born outside the land, that is, outside the king’s power.]"; September 28, 2012 at 5:25 PM
MichaelN said...: Puzo1 said...

"William Blackstone divided the people into “aliens, denizens, and natives.” 1 William Blackstone, Commentaries 366 (1765).

He did not use the clause “natural born subject” in his nomenclature.

He then stated that the “first and most obvious division of the people is into aliens and natural-born subjects.” Id. at 366."

This is where some people get it wrong, they seem to think that the term "alien" means only of birth in a foreign place, but this is only half of it, "alien" is also used to describe one who can be native-born, but to foreign allegiance, i.e. not born under the ligeance of a subject.

As for "natural born subject", again many make the mistake of thinking it means native-birth is the essential element for a NBS, but it is NOT.

A "natural born subject" can be one born anywhere, and not necessarily native-born in the realm of the king.

Here are some abstracts from Calvin's case which make it clear.

"[151. ][Ed.: An alien born is of foreign birth or foreign allegiance, and is also called peregrinus (foreigner), alien, exotic, stranger, etc. A stranger is a subject who is born outside the land, that is, outside the king’s power.]"

"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."

"....but so as many times ligeance or obedience without any place within the king’s dominions may make a subject born, but any place within the king’s dominions may make a subject born, but any place within the king’s dominions without obedience can never produce a natural subject.

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."; September 28, 2012 at 5:46 PM
MichaelN said...: Further to my previous/last post.

Puzo1 said, quoting Blackstone....

“first and most obvious division of the people is into aliens and natural-born subjects.” Id. at 366."

This division was not based on place of birth.

i.e. "aliens" did not necessarily mean born outside the country and "natural-born" did not necessarily mean born in the country.; September 28, 2012 at 9:30 PM
Texoma said...: Michael,

What I am reading into, based upon what Blackstone wrote, is that foreign merchants were considered to be foreigners and not alien subjects. Foreigners did not owe a local allegiance to the king and so a child born in England to a foreign merchant (a foreigner) would not be considered to be a natural born subject.

Blackstone does not say anything about foreign students, and I cannot find any material which references the status of foreign students in England, which is why I put forth my question to all of you.

I think the key here is “residence”. When a foreign merchant came to England, it was for a brief stay, just long enough to conduct his business. He probably stayed in an English version of a “Motel 6”. When a foreign student came to England, it was for at least one semester, which probably lasted a few months. Such a student probably took up residence in a dormitory or an apartment.

So, I think that it can be argued that a foreign student, having taken up residence in England, owed the king a local allegiance, and that his “business” in England to attain a college degree was not on a par with the business of a foreign merchant. Foreign merchants did not take up residence in England, and so it is easy to understand that they would not owe the king a local allegiance.

Now, while the above argument is convincing, I still would be interested in finding a specific reference to foreign students in England confirming their alien subject status. And in the unlikely event it should turn out that they were not considered alien subjects, but foreigners, I think that would be a strong argument against Obama’s claim to be a natural born subject, given that his foreign student father, had he studied at Oxford University in 18th century England, would not have owed a local allegiance to the English king, thus not making his England-born son a natural born subject.; September 28, 2012 at 10:10 PM
Mario Apuzzo, Esq. said...: Texoma,

The English common law excluded from owing a local and temporary allegiance to the King only those parents who were foreign diplomats and military invaders. There never was any exclusion from allegiance of merchants or students.

I also do not see any distinction in the English common law between an "alien subject" and a "foreigner." Where in that common law do you find such a distinction? And what is the distinction?; September 28, 2012 at 10:57 PM
MichaelN said...: Texoma said...

"Michael,

What I am reading into, based upon what Blackstone wrote, is that foreign merchants were considered to be foreigners and not alien subjects. Foreigners did not owe a local allegiance to the king and so a child born in England to a foreign merchant (a foreigner) would not be considered to be a natural born subject."

Kindly cite/quote the precise text which you are referring to.; September 29, 2012 at 3:21 AM
MichaelN said...: Here's something from Blackstones work, which should be of interest....

"Commentaries on the Laws of England, by William Blackstone
Book 4, Chapter 5
Of Offenses Against the Law of Nations

ACCORDING to the method marked out in the preceding chapter, we are next to consider the offenses more immediately repugnant to that universal law of society, which regulates the mutual intercourse between one state and another; those, I mean, which are particularly animadverted on, as such, by the English law.

THE law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world;1 in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance frequently occur between two or more independent states, and the individuals belonging to each.2 This general law is founded upon this principle, that different nations ought in time of peace to do one another all the good they can; and, in time of war, as little harm as possible, without prejudice to their own real interests.3 And, as none of these states will allow a superiority in the other, therefore neither can dictate or prescribe the rules of this law to the rest; but such rules must necessarily result from those principles of natural justice, in which all the learned of every nation agree: or they depend upon mutual compacts or treaties between the respective communities; in the construction of which there is also no judge to resort to, but the law of nature and reason, being the only one in which all the contracting parties are equally conversant, and to which they are equally subject.

IN arbitrary states this law, wherever it contradicts or is not provided for by the municipal law of the country, is enforced by the royal power: but since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land. And those acts of parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom; without which it must cease to be a part of the civilized world."

http://ebooks.adelaide.edu.au/b/blackstone/william/comment/book4.5.html; September 29, 2012 at 3:38 AM
Texoma said...: OK, Mario and Michael. Here is a link to an exhaustive analysis that details the difference between an “alien” (an alien subject in England) and a “foreigner”. It is:

Berry M. Anderson Berry, Whether Foreigner or Alien: A New Look at the Original Language of the Alien Tort Statute, Berkeley Journal of International Law, Vol. 27:2, 2009.

http://www.boalt.org/bjil/docs/BJIL27.2_Berry.pdf

Berry examines numerous texts (including Blackstone, Viner, Cunningham, Jacobs, Tomlins, Vattel, etc.) from the 18th century and earlier. From his research:

1. Aliens were a subset of foreigners.

2. An alien was a person who was foreign-born and resided in a sovereign’s territory other than the one where he was born.

3. A foreigner was a person who was foreign-born and resided extraterritorially.

Tomlin indicates that a foreigner (residing in a foreign country) could include those who were temporarily absent from their home country’s domicile:

"As to the case of a foreigner having money in the stocks, or other personal property in the kingdom; if he has what is in law termed his domicile in a foreign country, that is, if he is resident there, or only occasionally absent therefrom, and is subject to its laws, the disposition of such property, either under his Will, or in the case he dies without a Will, shall be regulated by the laws of the country of which he is a subject; but if he is domiciled in England, then by the English laws."

Regarding Blackstone, I found an example (1 COMMENTARIES 374) where he used the word “foreigner” in reference to monks who populated alien priories in England. An alien priory was a monastic establishment owing allegiance to a mother-abbey in a foreign country and was therefore not under the king’s protection. In my earlier post, I showed that Blackstone considered a merchant to be a foreigner, and so if merchants and priory-dwelling monks were both foreigners, neither of them owed a local allegiance to the king, and hence their England-born children would not be natural born subjects.

So, as I suspected, the key difference between who was an alien and who was a foreigner was residence. An alien’s residence was in England and a foreigner’s residence was not in England and included those who were occasionally absent from that non-England residence (such as merchants temporarily in England to conduct business).

However, I have still found no reference to foreign students in England and whether their temporary residence in England was long enough for them to be considered alien subjects. I suspect that it was long enough, and that they were not considered foreigners, as were the merchants.; September 29, 2012 at 2:56 PM
MichaelN said...: Texoma said....

"Foreigners did not owe a local allegiance to the king..."

Where do you get this from?; September 29, 2012 at 6:27 PM
Mario Apuzzo, Esq. said...: Texoma,

Here is Minor:

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

Minor, at 167-68.

Note Minor said that at "common-law," those born in the country to "citizen" parents were not only "citizens," but also "natural-born citizens" and those not so born could be nothing but "aliens or foreigners."

This surely is not an expression of the English common law which considered the children born to "alien" parents in the King's dominions and under his allegiance to be "natural-born subjects."

I have never seen any distinction between "alien" and "foreigner" and Minor did not make one. In my opinion, alien, stranger, and foreigner all mean the same, meaning someone who is not a "citizen" or "subject" of the nation so calling him or her that.

I'll take a look at the Berry article.; September 29, 2012 at 8:16 PM
MichaelN said...: Texoma said ....

"Tomlin indicates that a foreigner (residing in a foreign country) could include those who were temporarily absent from their home country’s domicile:

"As to the case of a foreigner having money in the stocks, or other personal property in the kingdom; if he has what is in law termed his domicile in a foreign country, that is, if he is resident there, or only occasionally absent therefrom, and is subject to its laws, the disposition of such property, either under his Will, or in the case he dies without a Will, shall be regulated by the laws of the country of which he is a subject; but if he is domiciled in England, then by the English laws."

Texoma, this is speaking of English law, it has nothing to do with ligeance.; September 29, 2012 at 9:35 PM
MichaelN said...: Here's an interesting article, an abstract from it says....

"In the final analysis the question in any nationality case is whether a person is a subject or an alien. He may be the former because born within the dominions of the sovereign or Crown in virtue, that is to say, of the general presumption that the allegiance is co-extensive with those dominions, or in virtue of the jus soli. Or he may be such by descent — because born of liege parents, or iure sanguinis. And the principles of the jus soli and the jus sanguinis do not stand opposed to one another. In most legal systems they are to be found intertwined, each supplying the limitations of the other. But the degree to which one or the other has been emphasised at any time may well have varied."

http://www.uniset.ca/naty/parry.htm; September 29, 2012 at 9:38 PM
MichaelN said...: Here's another abstract from:

http://www.uniset.ca/naty/parry.htm

"This, though it is possible to agree that the rule was that allegiance, and therefore nationality, was attributed at birth[44], it may be doubted whether it has been established that, prior to the seventeenth century, such attribution was either exclusively jure soli or jure sanguinis, or that allegiance was necessarily indelible.

Coke’s exception of children born in a castle or fort within the realm but in hostile occupation indicates that something more than mere birth within the realm was required[45]"; September 29, 2012 at 9:57 PM
MichaelN said...: Texoma.

It appears the only distinction which was made for "foreign" merchants (aka "alien-born" in the common law), was that they were exempt from paying the higher customs tariffs which the ordinary foreigner or alien-born had to pay.

This had nothing to do with the local ligeance which was due by ALL male foreigners aka alien-born friendly visitors to England.; September 29, 2012 at 10:03 PM
MichaelN said...: Interesting to note in Clive Parry's conclusions.....

(which can be found here) http://www.uniset.ca/naty/parry.htm

Parry says....

"1) The principle of the ius sanguinis was at all times reluctantly admitted in English or British nationality law and practice and imperfectly understood."; September 29, 2012 at 11:36 PM
Mario Apuzzo, Esq. said...: Texoma,

In his letter of July 25, 1787, John Jay wrote to George Washington: “Permit me to hint, whether it would 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 Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen (underlying "born" in the original). Max Ferrand, editor, The Records of the Federal Convention of 1787, Revised Edition, Volume III (New Haven: Yale University Press, 1937), p. 61.

We can see that Jay used the word “foreigner.” The way he used it, saying that a “strong check” was need to the admission of “foreigners” into the government administration, shows that “foreigner” had to have an equivalent meaning to “alien” or “stranger.” Residency could not be a distinguishing factor between a “foreigner” and "alien," for if “foreigners” were not even residents in the United States but “aliens” were, I think that Jay would have used the word “aliens” rather than “foreigners” concerning those against whom he wanted a “strong check” on being admitted into the government. I cannot imagine Jay being overly concerned with people most of whom were not even physically present in the United States wanting to become members of Congress.; September 30, 2012 at 5:35 PM
Texoma said...: Mario and Michael,

Berry’s research does show that the terms “alien” and “foreigner” were sometimes interchanged, especially given that while all aliens were foreigners, not all foreigners were aliens (one being a subset of the other).

Below is an excerpt from Berry’s research which indicates that Vattel also distinguished between the two terms:

“But in section 112, which deals with the “right of Escheatage,” Vattel discusses the rights of a “foreigner” to inherit: “foreigners are excluded from all inheritances in the state, either with respect to the goods of a citizen or to those of an alien.”360 This only occurrence of “alien” in the 1787 text, directly contrasted to “foreigner,” indicates that “alien” and “foreigner” have different definitions, and that “alien” is narrower than “foreigner.” By contrasting “alien” with “citizen” and “foreigner” in the same sentence, Vattel’s translator infers that an “alien” is an individual living in a state other than the state of his birth, and that a “foreigner” is not, in this instance, an “alien.” of an alien.”360 361

And keep in mind that Blackstone referred to monks in a priory in England and foreign merchants as both being foreigners. These monks did not owe a local allegiance to the king, and as foreigners, neither would foreign merchants.; September 30, 2012 at 11:02 PM
Mario Apuzzo, Esq. said...: Texoma,

You said that there is a distinction between a “foreigner” and an “alien,” with the former not taking up residence in the country which the latter did.

You said that Vattel seems to distinguish between a “foreigner” and an “alien” in a way which you say supports your position that “aliens” are residents of the country whereas “foreigners” are not.

But look at Sec. 212 Citizens and natives, of Vattel’s The Law of Nations, which provides in relevant part:

“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.”

Also in Section 214, Vattel states:

“Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner.”

One would think that some “foreigners” producing birth in a foreign country were probably residents of the country. Hence, under your theory, Vattel should have distinguished between some of these people, calling the residents “aliens,” and the non-residents “foreigners.” But even though surely some of those people from foreign lands were residents of the country and gave birth to children while in the country, Vattel still called them “foreigners” in both of these provisions.

Also look at Section 213. Inhabitants, of Vattel’s The Law of Nations. There he states:

“The inhabitants, as distinguished from citizens, are foreigners, who are permitted to settle and stay in the country.”

Here, Vattel states that foreigners can settle and stay in the country, making them inhabitants, which surely means that they would be residing in the country. One would think that, under your position, since these “foreigners” actually resided in the country, that Vattel would have called them aliens because that is what they would be under your definition. But Vattel calls them “foreigners.”

Hence, I do not see how Vattel would hold that a “foreigner” was not a resident of a country, but an “alien” was. I do not see any evidence that he distinguished between the two words. If anything, he probably used them interchangeably.; September 30, 2012 at 11:41 PM
MichaelN said...: Texoma said...
"Berry’s research does show that the terms “alien” and “foreigner” were sometimes interchanged, especially given that while all aliens were foreigners, not all foreigners were aliens (one being a subset of the other).

Texoma.

We are discussing 17th century English common law ..... right?

Ok.

On that as a given, please give some examples of a foreigner who is not an alien.

You still haven't shown where local ligeance is not due by an alien-born who is a "foreigner".

Give an example and cite the precise text.; October 1, 2012 at 12:14 AM
MichaelN said...: Texoma, it seems you are looking at Tort Law, when you seek to show a difference between a "foreigner" and an "alien".

I can't see where Tort Law had anything to do with local ligeance, in 17th century England, as it appears, according to Lord Coke, that ALL alien-born males visiting England were "subjects" by local ligeance (save foreign diplomats, royalty, nobility and enemy invaders); October 2, 2012 at 2:49 AM
Joe said...: Huge Victory !!!!
U.S. District Judge Emmet Sullivan Rules Natural Born Citizen Requirement Not Repealed By The 14th Amendment Or The 5th Amendment

Abdul Karim Hassan vs FEC - Court Opinion - District Court for the District of Columbia - 10/1/2012

The memorandum opinion is on birtherreport.com if you want to read it. Obviously you are on break. You deserve it. But I hope you see this victory. And we didn't even bring it.; October 2, 2012 at 4:18 PM
BrianH said...: On July 13 (12:22 p.m.) I wrote on this blog (comments to article previous to this present one):

So you are out to persuade the N.J. Supreme Court that ALJ Maslin read WKA incorrectly, even though how Maslin read the majority opinion tracks how the Chief Justice of the court which heard the WKA case read the majority opinion.

***

When the N.J.S.C. tosses your appeal (which it surely will do), perhaps I'll come by and give a wave.

Such prescience. Consider this my "hand wave."

Though another interesting thing has occurred in the interim. On July 10 (6:34 p.m.) I wrote:

Even assuming [Justice Gray in the Wong Kim Ark case] made an error(s), under the rule of stare decisis Wong Kim Ark is STILL the authoritative interpretation of the principles of birth citizenship in the context of a person of alien parent(s). So in a court of law, that decision reigns supreme, until the SCOTUS revisits the topic and concludes WKA was wrongly analyzed.

But unless and until that happens, don't expect any lower court considering the "two citizen parent" argument to do more than what the courts to date (Ankeny, Tisdale, Purpurra and Moran, etc.)have done: give a short citation to WKA and reject the argument.

On August 23, in the case of Fair v. Obama, (Circuit Court of Carroll Cty., Md), Judge Thomas Stansfield ruled on the "two citizen parent" argument. His opinion first quotes extensively from the Ankeny decision's discussion of the WKA case. Judge Standfield concludes:

The issue of the definition of "natural born citizen" is thus firmly resolved by the United States Supreme Court in a prior opinion, as this Court sees it, that holding is binding on the ultimate issue in this case. While Ms. Fair and Ms. Miltenberger may disagree with the holding of the Supreme Court, from a perspective of stare decises, the only means by which an opinion of the Supreme Court, concerning substantative law can be overturned is either by a subsequent holding of the Supreme Court or an amendment to the U.S. Constitution. Both have occurred in the past on very rare decisions, but this Court does not believe that it has the discretion to simply disregard a holding which clearly applies to the definition of "natural born citizen" as it applies to President Obama.

http://www.scribd.com/doc/104377229/Fair-v-Obama-Maryland-Obama-Ballot-Challenge-Decision-8-27-2012

So, in other words, the question of the meaning of "natural born citizen" is so well-settled under the WKA decision against the "two citizen parent" position, that it would require a constitutional amendment or another SCOTUS ruling to determine WKA was wrongly reasoned.

Most interesting indeed.; October 4, 2012 at 12:15 PM
juniper55 said...: Hassan v. FEC - from the judge:

"Moreover, the Supreme
Court has consistently held that the distinction between natural
born citizens and naturalized citizens in the context of
Presidential eligibility remains valid."

Wait a minute - isn't that the problem?

If the SC could please tell us if Obama is or is not NBC then we can all go home.

Also - the judge seemed more hung up on the fact that Hassan's chances - if allowed to run - were so small since he is such an outsider, that he shouldn't get any money to do so. The NBC comment struck me as a carefuly constructed but not greatly thought out afterthought. (or maybe they want Baumgartner v US forgotten so that they can revoke citizenship for any birther types who critizees judges or our Dear Leader...) (and what about that moviemaker getting all the blame for Libya and other embassy attacks - isn't he in prison without bail???); October 4, 2012 at 5:05 PM
MichaelN said...: @ BrianH

So precisely where in English common law is it held that native-birth alone sufficed to make a natural born subject?

I can't find it anywhere, so you should know, right?

Show me.; October 5, 2012 at 12:52 AM
BrianH said...: @MichaelN

So precisely where in English common law is it held that native-birth alone sufficed to make a natural born subject?

I can't find it anywhere [.]

Clearly, you're not looking very hard, and you must have done a good job of ducking your head in the sand those times in July when I showed you.

You could try William Blackstone, who in his Commentaries on the Laws of England states: "The children of aliens, born here in England, are, generally speaking, natural-born subjects, entitled to all the privileges as such." (Book I, Ch. 10).

And, as I've shown you before, Justice Horace Gray in the WKA majoritiy opionion, cites to several English authorities (e.g., Coke, Cockburn, Dicey)before concluding:

"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."

Per the laws of England, it sufficed to make one a "natural born subject" if one was a) born on English soil and b) one's father (even though an alien) was in amity (i.e., not a hostile invader or diplomatic agent).

Got it yet? Or is "every chld born in England of alien parents was a natural born subject" still too confusing for you to grasp?

But here's the manifest problem with your argument at this point. J. Gray is either correct in his statement or he's not. If he's correct, then your attempts to make it look like English law was not jus soli fail. If he's not correct, the WKA decision still stands as the definitive SCOTUS analysis on on the topic of the "natural born" status of a person born of alien parents. Unless that decision is superceded by another SCOTUS case indicating the analysis was flawed, your argument still flounders.; October 5, 2012 at 8:49 AM
Mario Apuzzo, Esq. said...: Arkers 1 like BrianH, Dr. Conspiracy, Squeeky Fromm, ballantine, nbc, John Woodman, Reality Check, and all those of like mind wherever they may be, are Muddlers. They conflate and confound American "common law" with English "common law" and a "natural born Citizen" with a "citizen of the United States." They are also blinders, feigning not to see what Congress plainly wrote in the Naturalization Acts of 1790, 1795, 1802, and 1855 and what the unanimous U.S. Supreme Court said in Minor v. Happersett (1875) about U.S. citizenship. The practical result of what they do, regardless of whether done intentionally or innocently, is that they put forth a definition of a “natural born Citizen” which is actually one of a “citizen of the United States.”

Indeed, Arkers are muddlers and blinders. The intentional ones, viciously deceitful, and the innocent ones, terribly confused. They have created for us a mash of confused, jumbled, and twisted law and policy on the question of what is an Article II “natural born Citizen.”

1. An “Arker” is a person who, through an intellectual process of muddling and denial, argues, among other erroneous things, that American citizenship is defined by English law rather than American law, that the Naturalization Acts of 1790, 1795, 1802, and 1855 did not address children born in the United States, that Minor v. Happersett (1875) did not define a “natural born Citizen” as the Founders and Framers understood the clause to mean when they drafted the Constitution, and that U.S. v. Wong Kim Ark (1898) held that Wong was an Article II “natural born Citizen,” rather than a Fourteenth Amendment “citizen of the United States.”; October 5, 2012 at 9:16 AM
MichaelN said...: They are really just a bunch of arking idiots.; October 5, 2012 at 9:42 AM
Mario Apuzzo, Esq. said...: I of II

BrianH,

U.S. v. Wong Kim Ark (1898) does not reign supreme on the definition of a “natural born Citizen.” The U.S. Supreme Court case that reigns supreme in that regard is Minor v. Happersett (1875).

Minor had no doubts about what a “natural-born citizen” was and provided the “common-law” definition of that term with which the Framers were familiar when they drafted the Constitution. The Court held:

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

Minor, at 167-68.

Clearly, this was the American “common-law” definition of a “natural-born citizen” and not one based on the English common law which considered a child born in the King’s dominions and under his allegiance to alien parents, who were neither foreign diplomats nor military invaders, a “natural born subject.” As can be seen, under the English common law, there was no doubt that a child born in England to alien parents was a “natural born subject.” This American “common-law” rule would have been the one applied by the Founders and Framers, as Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830)explained, “when a revolution occurs; a dismemberment takes place; new governments are formed; and new relations between the government and the people are established. Id. at 120. Indeed, the original American “citizens” were the “Citizens of the United States” and their children born to them in the United States were the “natural born Citizens” and so on through Posterity. The Founders and Framers would not have expected anything less from aliens who should become by naturalization “citizens of the United States.” Their children born to them in the United States were also “natural born Citizens” and so on through Posterity.

Contrary to your assertion, I have never contended that Wong Kim Ark “wrongly analyzed” the definition of a “natural born Citizen.” While I do not agree with the Court’s use of the English common law to define any aspect of U.S. citizenship, the Court’s holding only went to define a “citizen of the United States” at birth under the Fourteenth Amendment and not an Article II “natural born Citizen.” In fact, while Wong Kim Ark may have analyzed what a “natural born subject” was under colonial English common law, other than cite Minor and quote its definition of the clause, it did not otherwise explore the meaning of an Article II “natural born Citizen.” So, it accepted and did not disturb Minor’s “common-law” definition of a “natural-born citizen,” distinguished that “natural-born citizen” from a “citizen of the United States” at birth under the Fourteenth Amendment, and held that Wong was a Fourteenth Amendment “citizen of the United States” at birth. It did not hold that he was an Article II “natural born Citizen.”

Continued . . .; October 5, 2012 at 11:31 AM
Mario Apuzzo, Esq. said...: II of II

Wong Kim Ark resolved the doubts identified by Minor regarding whether children born in the United States to alien parents were “citizens,” and held that such a child was a “citizen of the United States” at birth under the Fourteenth Amendment. In so holding, Wong Kim Ark did not rely upon the same “common-law” relied upon by Minor, for that “common-law” provided that such a child was an alien. That was the “common-law” that the Framers used to define a “natural-born citizen.” Rather, what Wong Kim Ark did was look to the English common law for aid in answering the question of whether Wong was born “subject to the jurisdiction” of the United States,” clearly a test which had never before been applied in any definition of a “natural born Citizen.” Hence, Wong Kim Ark used English common law and the Fourteenth Amendment to hold that Wong was a “citizen of the United States” at birth. But that “citizen of the United States” at birth was not an Article II “natural born Citizen” who Minor had already defined under the “common-law” with which the Framers were familiar, which definition Wong Kim Ark acknowledged and did not alter.

You point out that on August 23, in Fair v. Obama (Circuit Court of Carroll Cty., Md), Judge Thomas Stansfield ruled on the "two citizen parent" argument. Judge Stansfield concludes:

"The issue of the definition of "natural born citizen" is thus firmly resolved by the United States Supreme Court in a prior opinion, as this Court sees it, that holding is binding on the ultimate issue in this case. While Ms. Fair and Ms. Miltenberger may disagree with the holding of the Supreme Court, from a perspective of stare decises, the only means by which an opinion of the Supreme Court, concerning substantive law can be overturned is either by a subsequent holding of the Supreme Court or an amendment to the U.S. Constitution. Both have occurred in the past on very rare decisions, but this Court does not believe that it has the discretion to simply disregard a holding which clearly applies to the definition of "natural born citizen" as it applies to President Obama."

http://www.scribd.com/doc/104377229/Fair-v-Obama-Maryland-Obama-Ballot-Challenge-Decision-8-27-2012

Hence, I agree with Judge Thomas Stansfield that “[t]he issue of the definition of a ‘natural born citizen’ is thus firmly resolved by the United States Supreme Court.” I also agree with him that “that holding is binding on the ultimate issue in this case.” I also agree that anyone disagreeing with a decision of the U.S. Supreme Court is bound by that decision and can be relieved of it only “by a subsequent holding of the Supreme Court or an amendment to the U.S. Constitution.” I also agree with him that a court does not have the “discretion to simply disregard a holding which clearly applies to the definition of a ‘natural born citizen’ as it applies to President Obama.”

The inescapable conclusion is that the unanimous U.S. Supreme Court in Minor “firmly resolved” what a “natural born Citizen” is. It told us how the Framers defined that clause under the “common-law” with which they were familiar when they drafted the Constitution. Hence, the meaning of a “natural born Citizen” is “well-settled” under Minor. Minor’s holding is “binding on the ultimate issue in this case” which is whether Obama is an Article II “natural born Citizen.” Obama is bound by that decision unless he obtains “a subsequent holding of the Supreme Court or an amendment to the U.S. Constitution” providing him with the relief that he seeks. Lacking any such U.S. Supreme Court decision or constitutional amendment, today’s courts do not have the “discretion to simply disregard a holding which clearly applies to the definition of a ‘natural born citizen’ as it applies to President Obama.” Under the well-settled definition of a “natural born Citizen” as confirmed by both Minor and Wong Kim Ark, Obama is not a “natural born Citizen” and therefore not eligible to be President.; October 5, 2012 at 11:33 AM
BrianH said...: @MarioA

1. An “Arker” is a person who ...argues . . .that American citizenship is defined by English law rather than American law

One sure sign of the weakness of your position is your constant need to mishcharacterize the counter-arguments.

You made a similar claim in July,, and I corrected you then. Specifically, July 5 @ 11:55 a.m.

"Mario: When you tell us that the Founders and Framers defined an Article II "natural born Citizen" by resort to the English "common law" . . .

Brian: 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."

So, again, it's the SCOTUS who analyzed the Constitional language in light of English common law. Saying American constitutional law is to be understood by reference to English common law (what the SCOTUS said) is NOT the same as saying American citizenship is defined by English law (your strawman spin).

American law reflects and has incorporated terminology from the English common law. That much the SCOTUS makes clear when in analyzes "natural born citizen."; October 5, 2012 at 1:59 PM
BrianH said...: @MarioA

Hence, I agree with Judge Thomas Stansfield that “[t]he issue of the definition of a ‘natural born citizen’ is thus firmly resolved by the United States Supreme Court.” I also agree with him that “that holding is binding on the ultimate issue in this case.” I also agree that anyone disagreeing with a decision of the U.S. Supreme Court is bound by that decision and can be relieved of it only “by a subsequent holding of the Supreme Court or an amendment to the U.S. Constitution.” I also agree with him that a court does not have the “discretion to simply disregard a holding which clearly applies to the definition of a ‘natural born citizen’ as it applies to President Obama.”

Yet neither Judge Stansfield nor any other judge which has ruled on the "two citizen parent" argument has looked to Minor to supply the rule of decision. They've all looked to WKA. And there are sound reasons for why they have done that.

First, Minor's statement about "natural born citizen" is obiter dicta. Virginia Minor was contending that as a citizen the 14th Amendment's "P&I" clause guaranteed her the right to vote. It was immaterial to her argument -- and the Court's decision -- whether she was a citizen at birth or a naturalized citizen. So the Court's brief statements about her being a natural born citizen are obvious dicta.

Second, any judge knows -- as to a case presenting the question of a person born of an alien parent -- that WKA is more "on all fours" than Minor as it actually presents and analyzes the case of a person born in the U.S. of alien parents. Minor didn't discuss that at all! In fact, the case was about voting rights; not citizenship. So why would any judge look to a case (Minor) that didn't in the least address the question at issue?

So, it's little surprise when you take that bit of obiter dicta from Minor and argue that it supplies the decision for a case involving President Obama that every judge rejects that out of hand.; October 5, 2012 at 2:15 PM
Mario Apuzzo, Esq. said...: BrianH,

You want it both ways. You hide behind expressions such as “”in light of English common law” and “to be understood by reference to English common law.” You state that “American law reflects and has incorporated terminology from the English common law.” You want English common law to provide the rule of decision on defining a “natural born Citizen,” but then tell us that English common law does not provide the rule of decision and accuse me of making a “strawman argument.” You cannot have it both ways. Either the English common law provides the rule of decision or it does not.

Your reliance upon Smith v. Alabama to support your position that English common law provides the rule of decision when defining a “natural natural born Citizen” is misplaced. Smith had nothing to do with federal issues and especially no application in the national citizenship area.

We are not faced with some general and undefined notion of constitutional law where the English common law may provide some guidance. We have a specific issue regarding U.S. citizenship. The law of nations which became national law specifically applies to matters of national citizenship. Minor v. Happersett and U.S. v. Wong Kim Ark both confirmed that that law became part of our "common-law" and provided the definition of a "natural born Citizen."; October 5, 2012 at 5:39 PM
MichaelN said...: BrianH said .....

"American law reflects and has incorporated terminology from the English common law. That much the SCOTUS makes clear when in analyzes "natural born citizen." "

Nowhere in 17th century English common law was it held that native-birth alone, sufficed to make an English "natural born subject"...... NOWHERE!

It is a fact per English common law, that if a native-born child in England, was not "born under the ligeance of a subject" father, than that child was an alien-born by being born under "foreign allegiance".

There is no doubt the framers were very familiar with the English common law, therefore the framers would have required a US native-born child to be born "under the ligeance of a" US citizen, to be a US "natural born Citizen father.

BrianH, show precisely where in 17th century English common law, it was held that native-birth alone sufficed to make an English natural born subject.

You CAN'T............ because IT DOESN'T!; October 5, 2012 at 5:53 PM
Mario Apuzzo, Esq. said...: BrianH,

Minor did not provide some “brief statements” about citizenship. The Court did not accept the parties’ assumption that Virginia Minor was a “citizen.” Rather, it showed by analysis of historical sources and U.S. citizenship laws why women without a doubt were “citizens” as much as men. Its analysis of U.S. citizenship was thorough and part of its ratio decidendi. Its citizenship analysis is not dicta, but rather part of its first holding in which it found that women were as much as men “citizens.” In reaching that conclusion, it confirmed the definition of a “natural-born citizen” which it said was not found in the Constitution (which then already included the Fourteenth Amendment), but rather found in the “common-law” with which the Framers were familiar. The second holding was that women, even as “citizens,” under then existing law did not have a constitutional right to vote. Even U.S. v. Wong Kim Ark cited and quoted Minor for citizenship and not for voting rights.

That Wong Kim Ark analyzed the citizenship status of children born in the United States to alien parents does not convert the decision into one defining a “natural born Citizen.” Minor had already told us what a “natural born Citizen” was, i.e., a child born in a country to parents who were “citizens” of that country when the child was born. On the other hand, Wong Kim Ark held that a child born in the United States to domiciled and resident alien parents was included as a “citizen of the United States” at birth under the Fourteenth Amendment. Remember that Minor did not find the definition of a “natural born citizen” in the Fourteenth Amendment. Wong Kim Ark did not hold that child to be an Article II “natural born Citizen.”; October 5, 2012 at 7:31 PM
BrianH said...: @MarioA

You state that “American law reflects and has incorporated terminology from the English common law.”

So the SCOTUS in WKA noted explicitly.

You want English common law to provide the rule of decision on defining a “natural born Citizen,”

No. But understanding the English common law sheds light on the meaning of "natural born citizen." It's not a "rule of decision" but a matter of semantics and etymology.

Again, I made this same point several times in July.

but then tell us that English common law does not provide the rule of decision

Right, because we don't determine President Obama's status as NBC by simply looking directly at English cases. English cases form the backdrop for the American cases. It's those latter cases the supply the rule of decision.

Either the English common law provides the rule of decision or it does not.

On top of strawman arguments, you add false dichotomies. English common law can provide guidance by way of semantics and etymology without having to rise to the level of the rule of decision.

That's exactly how WKA treated it.

Your reliance upon Smith v. Alabama to support your position that English common law provides the rule of decision when defining a “natural natural born Citizen” is misplaced. Smith had nothing to do with federal issues and especially no application in the national citizenship area.

But WKA (which cited Smith) did involve questions of Constitutional law, including the meaning of NBC. And as to understanding these constitutional terms, the WKA court said we are guided by reference to English common law. Here it is again, since this passage seems to induce amnesia in you:

"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, 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."

So, yes, the SCOTUS said we look to English common law (and NOT VATTEL) for understanding of various U.S. Consitutional terms like "natural born citizen."; October 5, 2012 at 8:50 PM
BrianH said...: @MichaelN

Nowhere in 17th century English common law was it held that native-birth alone, sufficed to make an English "natural born subject"...... NOWHERE!

Michael, starting tomorrow morning I'm heading to the beach for 3 days. I'd bring you back some sand, but clearly you've got your head stuck so far down deep inside a pile already, it's unnecessary for me to add more.

Read what I showed you earlier:

"You could try William Blackstone, who in his Commentaries on the Laws of England states: "The children of aliens, born here in England, are, generally speaking, natural-born subjects, entitled to all the privileges as such." (Book I, Ch. 10).

And, as I've shown you before, Justice Horace Gray in the WKA majoritiy opionion, cites to several English authorities (e.g., Coke, Cockburn, Dicey)before concluding:

"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."

Per the laws of England, it sufficed to make one a "natural born subject" if one was a) born on English soil and b) one's father (even though an alien) was in amity (i.e., not a hostile invader or diplomatic agent).

Got it yet? Or is "every chld born in England of alien parents was a natural born subject" still too confusing for you to grasp?"

Nowhere? How about: Right there! Just open your eyes and read.; October 5, 2012 at 8:54 PM
BrianH said...: @MarioA

I see in your responding post about Minor and WKA you didn't address my point that when faced with the question of the birth citizenship status of President Obama,where the issue is his having an alien parent, any judge (and any one who has graduated law school who isn't blinded by the needs of advocacy) understands that the more relevant case is WKA, since that case likewise presented the question of the birth citizenship status of a person having alien parents.

And any judge will also understand that since Minor didn't present the situation of someone born of alien parents, the case doesn't hold any precedential value when called to answer the question of President Obama!

On this point, I'm sure silence will again follow.; October 5, 2012 at 9:08 PM
Mick said...: No term is defined in the Constitution, as it is not a dictionary. Does the Constitution define "Corruption by blood", or "expost facto", or "Letters of Marquis and Reprisal"? Does it define "citizen"?

"[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts
the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such a case, absence of contrary
direction may be taken as satisfaction with widely accepted definitions, not as departure from them". Morissette v. United States, 342 U.S. 246, 263 (1952).

Clearly, the only place the exact term "natural born Citizen" appears is in the doctrine of natural law, or "law of nations". It is a "term of art," i.e not defined by breaking it down into constituent words.

“where a phrase in a statute appears to have become a term of art . . . , any attempt to break down the term into its constituent words is not apt to illuminate its meaning.” ., Sullivan v. Stroop, 496 U.S. 478, 483 (1990)

Not only did the Constitutional Congress IMPLICITLY adopt "law of nations", it EXPLICITLY adopted it in A1S8C10.
"...Congress shall punish violations against the law of nations".

In the doctrine of natural law perpetual allegiance is anathema, thus Brit Common Law with regard to citizenship is null and void (And was so by agreemant of the British in the Treaty of Peace ).

Natural born Citizen only means 1 thing in law of nations--- one born in a country of citizen parentsssssss, for the country of the father is the country of the son. The Usurper even said so in the title of his book.; October 5, 2012 at 9:30 PM
MichaelN said...: Part 1 of 2
BrianH said ....
"Per the laws of England, it sufficed to make one a "natural born subject" if one was a) born on English soil and b) one's father (even though an alien) was in amity (i.e., not a hostile invader or diplomatic agent).

Got it yet? Or is "every chld born in England of alien parents was a natural born subject" still too confusing for you to grasp?"

Nowhere? How about: Right there! Just open your eyes and read."

Reply:

YOU FAIL DISMALLY!
aka EPIC FAILURE!

YOU show where in 17th century ECL it was held that native-birth alone sufficed to make an English NBS.

"one's father (even though an alien) was in amity (i.e., not a hostile invader or diplomatic agent)." EQUATES to being a "SUBJECT", and ONLY because of that status, his child can be an English NBS

The examples given e.g. "not a hostile invader or diplomatic agent", are to show the FEW instances where an alien-born visitor is NOT A SUBJECT by local ligeance.

The father MUST BE A SUBJECT, for his native-born child to be a subject of ANY KIND.

Now it is YOU who needs to read...

Lord Coke - Calvin's case....

And this is in effect the description which Littleton himself maketh, lib. 2. cap. 14. Villen. fol. 43. Alienigena est alienae gentis seu alience ligeantiae, qui etiam |[16 b] dicitur peregrinus, alienus, exoticus, extraneus, &c. Extraneus est subditus, qui extra terram, i.e. potestatem regis natus est.151"

Latin translated....

[151. ][Ed.: An ALIEN BORN is of foreign birth OR FOREIGN ALLEGIANCE, and is also called peregrinus (foreigner), alien, exotic, stranger, etc. A stranger is a subject who is born outside the land, that is, outside the king’s power.]

"Foreign birth" meaning born off-shore, i.e. NON NATIVE

"Foreign allegiance" meaning native-born, but to a parent who is not a subject.

Coke again....

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.

It doesn't get any clearer than that!

a) a child can be born native yet be an alien-born due to the foreign allegiance of his father.

b) it is NOT birth on the soil, that makes a subject born

c) a native born child CANNOT be a subject born (aka natural born subject)unless "born under the ligeance of a subject".

NOWHERE do any of the commentators you cite, i.e. Blackstone etc state that native-birth alone sufficed to make an English natural born subject.

(cont'd); October 5, 2012 at 9:49 PM
MichaelN said...: Part 2 of 2

Learn to read!

This might help.

Here's what another learned commentator had to say on the subject...

(which can be found here)
http://www.uniset.ca/naty/parry.htm

CLIVE PARRY
M.A., LL.B.

Fellow and Tutor of Dowling College and Lecturer in the University of Cambridge

BRITISH NATIONALITY LAW

AND THE HISTORY

OF NATURALISATION

MILANO — GIUFFRÈ — 1954

Parry says....

"1) The principle of the ius sanguinis was AT ALL TIMES reluctantly admitted in ENGLISH or British nationality LAW and practice and imperfectly understood."

and

"In the final analysis the question in any nationality case is whether a person is a subject or an alien. He may be the former because born within the dominions of the sovereign or Crown in virtue, that is to say, of the general PRESUMPTION that the allegiance is co-extensive with those dominions, or in virtue of the jus soli. Or he may be such by descent — because born of liege parents, or iure sanguinis. And the principles of the jus soli and the jus sanguinis do not stand opposed to one another. In MOST legal systems they are to be found INTERTWINED, each supplying the limitations of the other. But the degree to which one or the other has been emphasised at any time may well have varied."

Native-birth was NOT ENOUGH to the English, and it was NOT ENOUGH to the Founding Fathers and Framers of the US Constitution.

You really should begin to be honest with yourself and with others BrianH ......... oh and learn to read properly.; October 5, 2012 at 9:51 PM
Mario Apuzzo, Esq. said...: It looks like BrianH has spent too many days on the beach under the sun looking for sand.

Under the English common law, anyone giving birth to a child in the King’s dominions had to be a “subject” in order for that child to be born a “natural born subject.” Under that same English common law, any alien physically present in the King’s dominion who was neither a foreign diplomat nor a military invader was considered a “subject” because he owed local but temporary allegiance to the King in return for which the King provided him protection. As long as that alien stayed in the King’s dominion, he owed the King that temporary allegiance and the King owed him that protection. Since virtually all aliens physically present in the King’s dominion were considered “subjects,” it was accepted that “[t]he children of aliens, born here in England, are, generally speaking, natural-born subjects (8) and entitled to all the privileges of such.” Blackstone, Commentaries, Book I, p. 374.

But in the United States, things were different. Under American “common-law,” anyone giving birth to a child in the United States had to be a “citizen” in order for that child to be born a “natural born citizen.” Minor v. Happersett (1875). Under that same “common-law,” any alien physically present in the United States did not automatically become a “citizen,” even if not a foreign diplomat or a military invader. Rather, under U.S. naturalization acts, that alien had to take affirmative steps defined by those acts to become a “citizen of the United States.” Hence, it was not sufficient for one to be simply present on U.S. soil to be treated as a “citizen.” Rather, one had to naturalize in order to become a “citizen of the United States” and to give birth to a “natural born Citizen” child.; October 5, 2012 at 11:24 PM
Mario Apuzzo, Esq. said...: BrianH,

You do not want to admit that you are putting forth a notion that post-Revolutionary America defined a “natural born citizen” under English common law rather than under American common law. You and your Obot buddies bought that theory and now you own it.; October 5, 2012 at 11:45 PM
Mario Apuzzo, Esq. said...: BrianH,

(1) You said: “I see in your responding post about Minor and WKA you didn't address my point that when faced with the question of the birth citizenship status of President Obama,where the issue is his having an alien parent, any judge (and any one who has graduated law school who isn't blinded by the needs of advocacy) understands that the more relevant case is WKA, since that case likewise presented the question of the birth citizenship status of a person having alien parents”

I did address this in my comment. Here is my answer again:

That Wong Kim Ark analysed the citizenship status of children born in the United States to alien parents does not convert the decision into one defining a “natural born Citizen.” Minor had already told us what a “natural born Citizen” was, i.e., a child born in a country to parents who were “citizens” of that country when the child was born. On the other hand, Wong Kim Ark held that a child born in the United States to domiciled and resident alien parents was included as a “citizen of the United States” at birth under the Fourteenth Amendment. Remember that Minor did not find the definition of a “natural born citizen” in the Fourteenth Amendment. Wong Kim Ark did not hold that child to be an Article II “natural born Citizen.”

(2) You said: “And any judge will also understand that since Minor didn't present the situation of someone born of alien parents, the case doesn't hold any precedential value when called to answer the question of President Obama!”

Your point is frivolous. If a case tells me that I have to have red pants on to get a red lollipop, it does not matter that the case did not also say that if I have green pants on, I do not get the red lollipop. It follows a fortiori that if I have green pants on (I do not have red pants on), I will not get a red lollipop.; October 6, 2012 at 12:16 AM
Mick said...: "
I see in your responding post about Minor and WKA you didn't address my point that when faced with the question of the birth citizenship status of President Obama,where the issue is his having an alien parent, any judge (and any one who has graduated law school who isn't blinded by the needs of advocacy) understands that the more relevant case is WKA, since that case likewise presented the question of the birth citizenship status of a person having alien parents. "

Besides the fact that WKA was NEVER said to be natural born, that case does not apply to Obama. The patents of WKA were legally domiciled permanent resident aliens. Obama Sr. was in Hawaii on a student visa, and never a legal permanent resident.; October 6, 2012 at 6:52 AM
Texoma said...: Michael and Mario,

My day job has taken all my time this week, and so I am now just able to continue our conversation.

Have either of you read what Berry exhaustively researched with respect to the difference between an “alien” and a “foreigner”, specifically section IV pages 337-367? I provide the link again, below.

http://www.boalt.org/bjil/docs/BJIL27.2_Berry.pdf

If you would, please do read his research and you will understand, even if you do not agree with, his findings:

1. Aliens were a subset of foreigners. While all aliens were foreigners, not all foreigners were aliens.

2. An alien was a person who was foreign-born and resided in a sovereign’s territory other than the one where he was born.

3. A foreigner was a person who was foreign-born and resided extraterritorially.

Note that his findings are also consistent with the definition of “foreigner” in the Dictionary of Law by Henry Campbell Black, First Edition, 1891, page 506:

“FOREIGNER. In old English law, this term, when used with reference to a particular city, designated any person who was not an inhabitant of that city. According to later usage, it denotes a person who is not a citizen or subject of the state or country of which mention is made, or any one owing allegiance to a foreign state or sovereign.”

Michael, this definition explains why Blackstone considered foreign merchants to be foreigners and not aliens. These merchants did not reside in England and they owed a foreign allegiance. It also explains why monks, despite their residence in a foreign-controlled priory in England, who owed allegiance to a mother-abbey in a foreign country, were also considered to be foreigners by Blackstone.

Mario, you provided examples of foreigners who had the characteristics of aliens (persons who took up residence in England and owed a local allegiance to the king), but remember that it was not incorrect to refer to alien as being a foreigner, since all aliens were foreigners. But Berry’s research shows that the term “alien” was rarely, if ever, used to refer to a person whose residence was in a foreign country.

The terms “alien” and “foreigner” remind me of the terms “native-born” and “natural born”. While all natural born citizens are native-born, not all native-born citizens are natural born. This explains why natural born citizens, such as the Steinhauler boy, who was a natural born citizen, was referred to as being native-born.; October 7, 2012 at 12:20 PM
Mario Apuzzo, Esq. said...: Texoma,

Maybe I can get further insight into your argument if you tell me what is the purpose of your proving that there is a significant distinction between an "alien" and a "foreigner."; October 7, 2012 at 2:02 PM
cfkerchner said...: Texoma: Given you are keen on differentiating between the terms alien and foreigner, in your mind and reasoning which term would you apply to Obama Sr., the non-U.S. Citizen, non-immigrant to the U.S. father of Obama II. Explain your reasoning why he (to you) is one and not the other.; October 7, 2012 at 4:02 PM
MichaelN said...: Texoma said ....

"If you would, please do read his research and you will understand, even if you do not agree with, his findings:

1. Aliens were a subset of foreigners. While all aliens were foreigners, not all foreigners were aliens.

2. An alien was a person who was foreign-born and resided in a sovereign’s territory other than the one where he was born.

3. A foreigner was a person who was foreign-born and resided extraterritorially."

@Texoma.
This appears to conflict with the definitions provided by Lord Coke per Calvin's case.

Coke says that an "alien born" may be of "foreign birth" or "foreign allegiance".

"Foreign birth", obviously meaning born off-shore.

"Foreign allegiance", obviously meaning native-born to a father with no local allegiance.

"[151. ][Ed.: An alien born is of foreign birth or foreign allegiance, and is also called peregrinus (foreigner), alien, exotic, stranger, etc. A stranger is a subject who is born outside the land, that is, outside the king’s power.]"

Coke appears to be saying that an alien can be either or both, born in a foreign place and/or native born to a father with no local allegiance.

Ergo, not all aliens were of foreign birth.

you said...

"2. An alien was a person who was foreign-born and resided in a sovereign’s territory other than the one where he was born."

This conflicts with Coke, where Coke says an alien can be native-born AND reside "in a sovereign's territory other than one where he was born".

you said ....

"3. A foreigner was a person who was foreign-born and resided extraterritorially."

This conflicts with Coke, where Coke says that it is an "alien born", aka "alien" who may be such by foreign-birth.

Ergo, a person of foreign birth was held to be "alien born", aka "alien" and a person of native-birth was held to also be an "alien born", aka "alien" if his father was of local allegiance.

Coke says...

"Every man is either Alienigena, an Alien born, or subditus,164 a subject born."

Bear in mind that an "alien born" may be due by "foreign birth" or native-birth (to father with no local allegiance)

So it appears the/your notion that "all aliens were foreigners" doesn't hold true.; October 7, 2012 at 6:03 PM
Mario Apuzzo, Esq. said...: I of II

Texoma,

Concerning persons who were not “natural born subjects” and present in the King’s dominion and who gave birth to a child while there, Blackstone only covered the situation of “aliens” giving birth to such children and said “[t]he children of aliens, born here in England, are, generally speaking, natural-born subjects (8) [with the exception of children born to military invaders], and entitled to all the privileges of such.” Blackstone, Commentaries, Book I, p. 374. If Blackstone considered “foreigners” significantly different from “aliens,” Blackstone would have realized that “foreigners,” physically present in England, could also give birth to children while there. But his Chapter 10 does not cover what the status of such children born in England was. Why would Blackstone omit such coverage from his chapter? The answer for me is that he did not see any legal difference between an “alien” and a “foreigner” and hence he did not see any need to explain what the status of children born to “foreigners” in England was.

Blackstone maintained that the King owed his protection to both an “alien” and a “foreigner” physically present in his dominion. This protection created a debt for that “alien” and “foreigner” which he repaid in the form of allegiance to the King, even though such allegiance was temporary and lasted only as long as that “alien” or “foreigner” physically remained in the King’s dominion. The King’s protection was denied only to ambassadors, military invaders, and priory-dwelling monks who did not owe any allegiance to the King even though physically present on his territory.

The English common law also only provided two exceptions to the acquisition of the status of a “natural-born subject” for children born to “alien” parents in the King’s dominion. The two were for children born to foreign ambassadors and military invaders. Surely, not all “foreigners” in England had to be either foreign ambassadors or military invaders. For sure there were “foreigners” who did not fall into either one of these categories. If Blackstone defined “aliens” significantly different from how he defined “foreigners,” we would expect that in speaking about an “alien,” Blackstone and the English common law otherwise would have made it clear that “alien” did not include a “foreigner” and that children born to “foreigners’ in the King’s dominion and under his allegiance were or were not exempted from acquiring the status of a “natural born subject.” But both Blackstone and the English common law were silent on what the status of such children was which suggests that their treatment of children born to “aliens” in the King’s dominion and allegiance sufficiently covered the question. This suggests that neither Blackstone nor the English common law made any distinction between an “alien” and a “foreigner."

Acknowledging the exceptions noted above which already contain a distinction between certain persons who were not “natural born subjects” and who were physically present in the King’s dominion, if both “aliens” and “foreigners” received protection from the King and both owed the King allegiance as a “debt of gratitude” for that protection, and both the children of “aliens” and “foreigners” born in the King’s dominion and under his allegiance were therefore considered “natural-born subjects,” where is the further legal distinction between an “alien” and a “foreigner” under English common law?

Continued . . .; October 8, 2012 at 10:50 AM
Mario Apuzzo, Esq. said...: II of II

Furthermore, how do you explain that Wong Kim Ark, in its thorough exposition of the colonial English common law, other than discussing the parental foreign ambassador and military invader exceptions to birthright subjectship, did not mention that that law made any distinction between an “alien” and a “foreigner” based on residency or domicile? Wong even explained how an alien owed allegiance to the King even though he may be located within his dominion and under his allegiance only on a temporary basis. Being present in a territory only on a temporary basis suggests that such person is not a domiciliary or resident of that place. Wong Kim Ark, without finding that the English common law required that an “alien” be a domiciliary of or resident in the King’s dominion for his children born there to be “natural born subjects,” nevertheless held that Wong’s parents and therefore Wong himself at the moment of birth in the United States were “subject to the jurisdiction” of the United States because the parents were domiciled and residing in the United States, which gave him the constitutional right under the Fourteenth Amendment to be considered a “citizen of the United States” at the moment of birth. Hence, what Justice Gray did in Wong Kim Ark was actually add a domicile and residency requirement to the Fourteenth Amendment’s “subject to the jurisdiction thereof” clause which did not exist in the English common law.; October 8, 2012 at 10:51 AM
Texoma said...: Commander Kerchner, first thank you for your hard work. Thank you also for your question regarding Obama Senior. It brings us back to my original purpose of distinguishing between an alien (alien subject) and a foreigner in England. Alien subjects resided in England and owed a local allegiance and so their children were natural born subjects.

Foreigners included people such as monks (living in a foreign-controlled priory) and foreign merchants who did not have a residence in England (their residence was thus “extraterritorial”). If these foreigners did not owe a local allegiance, then their England-born children would not be natural born subjects. If a foreign student were to be considered to be a foreigner, then neither would his England-born children be natural born subjects.

So, what if Obama Senior had been a foreign student at Oxford University and had a child (with an English woman) born in England? Would this Obama Junior have been considered to be a natural born subject? If not, then that vacates one of the main arguments of Obama supporters – that Obama Junior is a natural born citizen because he would have been a natural born subject per English common law.

However, the discussion here has centered not on whether a foreign student was a foreigner, but whether a foreigner was someone who did not owe a local allegiance, due to his brief stays in England and his permanent residence outside of England.

I have provided a link to research done by a man named Berry, who concludes that the terms “alien” and “foreigner” meant different things. He concludes that they both were foreign-born, but the alien had residence in England, whereas the foreigner did not. This is explains why Blackstone refers to foreigner merchants as foreigners, for they were like our present-day travelling international salesmen, staying a few days in a foreign hotel and then returning to their permanent residence in the U.S.

To date, I am not aware that any of the bloggers on this site (who are all very knowledgeable) have read the 30 or so pages from Berry’s research on the difference between alien and foreigner in England. I have summarized his findings, which he painstakingly has backed up with dozens of examples from numerous authoritative men including Blackstone, Viner, Cunningham, Jacobs, Tomlins, Vattel, etc. Perhaps you would take some time to read the relevant pages (section IV pages 337-367) from Berry’s research? I found it to be an easy read.; October 8, 2012 at 10:06 PM
cfkerchner said...: Texoma: I wanted to know your exact position, after you read Berry, and debating here, and knowing the facts regarding Obama Sr.'s status in the USA. Thus, I asked you a direct question which you did not answer, but instead referred me to read Berry. I cannot find your thinking and mindset from reading Berry. I wanted your conclusion. I asked what you consider Barack Obama Sr. to be, alien or foreigner, based on your understanding of the meanings of the words alien and foreigner from your reading of Berry and your reasoning why you believe he is one and not the other. Thus I think you ducked the question that I asked as to your conclusion as to what Obama Sr. was, an alien or a foreigner. Here is the direct question again.

--------------------
Texoma: Given you are keen on differentiating between the terms alien and foreigner, in your mind and reasoning which term would you apply to Obama Sr., the non-U.S. Citizen, non-immigrant to the U.S. father of Obama II. Explain your reasoning why he (to you) is one and not the other. -----------------------; October 9, 2012 at 1:09 AM
BrianH said...: @MichaelN

"one's father (even though an alien) was in amity (i.e., not a hostile invader or diplomatic agent)." EQUATES to being a "SUBJECT", and ONLY because of that status, his child can be an English NBS

So when Blackstone wrote in his Commentaries on the Law of England -- "The children of aliens, born here in England, are, generally speaking, natural-born subjects, entitled to all the privileges as such." (Book I, Ch. 10). -- he just missed the royal barge because Blackstone should have known that these were REALLY 'subjects,' and not 'aliens?'

Michael, you put me to the choice here of concluding either Blackstone was a dolt or you are. You get the vote.

Does not a little voice somewhere go off inside your cranium when you read Blackstone calling these persons 'aliens,' while you are attempting to pass them off as 'subjects?' I mean, isn't there a moment's pause where you say to yourself "Self, why is it that Blackstone, one of the foremost commentators on the ECL is describing this situation differently than I am? What am I perhaps misreading?"

But, it seems that little cautionary voice doesn't arise, and so you plunge headlong off the deep-end. Such is life as a Birther.

The father MUST BE A SUBJECT, for his native-born child to be a subject of ANY KIND.
***
Coke again....

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.

Michael, Michael. In July I had to set you down and give you a lesson in the fundamentals of paragraph structure. Now it seems you need remedial work on basic grammar and syntax, too.

Blackstone, of course, recognizes that the children of subjects are natural born subjects. And, as I've quoted him, Blackstone ALSO recognizes that the children of ALIENS (in amity) who are born on English soil are also natural born subjects. Are we to suppose that Calvin's case says otherwise? The answer is "no."

Let's look at the passage you so gleefully trot out.

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.

Michael, now pay close attention: notice that little word "nor" following the clause you keep capitalizing? In English, "nor" (like "or") is disjunctive in operation. That means that "he was not born under the ligeance of a subject" and "nor under the protection of the King" are separate, independent situtations.

The child of a hostile invader is not a natural born subject because he fits NEITHER of the two situations in which children born on English soil are NBS: 1) "born under the ligeance of a subject" (i.e., children of subjects) or 2) "under the protection of the King" (i.e., children of ALIENS IN AMITY whom Blackstone freely recognizes are also NBS!!)

But in your overeagerness you seize upon the first situation, put that in bold or all caps, while overlooking the second. A very elementary blunder, Michael. Back to school for you.

c) a native born child CANNOT be a subject born (aka natural born subject)unless "born under the ligeance of a subject".

OR . . . (Michael, what's the second way in which a native born child can be born a subject??) if his parent was "under the protection of the King." So children of aliens in amity are thus also natural born subjects.; October 9, 2012 at 10:00 AM
BrianH said...: @MarioA

Under the English common law, anyone giving birth to a child in the King’s dominions had to be a “subject” in order for that child to be born a “natural born subject.”

You and Wm. Blackstone seem to have differing views here. For he writes:

"The children of aliens, born here in England, are, generally speaking, natural-born subjects, entitled to all the privileges as such." (Book I, Ch. 10).

Where does Blackstone state anything to the effect that said alien had first to become a "subject" for the child born to be NBS? It seems you and MichaelN are both blundering down the same path here.

But in the United States, things were different.

It seems you and the U.S. Supreme Court have differing views here. In the WKA case, as I've noted, J. Gray first lays down the clear jus soli rule which held true under the ECL:

"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."

Very clearly stated. And nothing there about such aliens being actually "subjects." Nope. Pure jus soli rule (with the noted exceptions for invaders and diplomats).

And then Gray -- in the next sentence -- states that the "same rule" had been the rule under American common law:

"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."

Per the SCOTUS, the SAME RULE held true under the common law of both England and the U.S.

So you think under the ECL a person had to be a 'subject' for the child born to be NBS. Blackstone states the rule quite differently. You think that there were different rules in effect for England and the U.S. The U.S. Supereme Court states the "same rule" operated in both places.

The astute reader can easily observe why your cases go nowhere.; October 9, 2012 at 10:14 AM
Mario Apuzzo, Esq. said...: I of II

Texoma,

Other than with noted exceptions, I do not think that the English common law made any significant distinction between resident and nonresident foreign persons who were physically present in the King’s dominions. If one did not fall into one of the common law exceptions, i.e., foreign diplomat, royalty, or military invader, if one was physically located in the King's dominions, one owed him at least local and temporary allegiance in return for the King’s protection. So if foreign merchants, students, or even monks, who owed the King allegiance while physically located in his dominion in return for the protection he granted to them while there, should engage in activities deemed sufficiently injurious to the King while they were in his dominion, the King could surely try them for treason.

This is not to mean that today we do not make a distinction between “foreigners” and “aliens” and between “resident aliens” and “nonresident aliens.”

1. There are persons who are "citizens" of and live in foreign countries and who never stepped foot in the United States. These persons are “foreigners.”

2. There are persons who are "citizens" of and live in foreign countries and legally come to the United States on a temporary basis for a vacation or to transact business, to study, or to work, all of whom are not immigrants to the United States. These persons are “foreigners” and “nonresident aliens.”

3. There are also persons who are "citizens" of and live in foreign countries and who legally come to the United States to be immigrants, i.e., to live and work in the United States on a permanent basis. These persons enter the United States by various means which include family petitions, employer petitions, asylum applications, or winning a lottery. These persons are “foreigners” and “resident aliens.”

4. There are persons who are "citizens" of and live in foreign countries who enter the United States without inspection and are therefore in the territory illegally. These persons can come to the United States for any reason. These persons are “foreigners” and “nonresident aliens.”

All these persons are "foreigners," regardless of whether they are resident or nonresident aliens and whether they entered the United States legally or illegally.

Hence, when foreigners set foot in the United States, we considered them aliens, although we distinguish between whether they are resident or nonresident aliens. We call resident aliens (legal permanent resident or LPR) those foreigners who immigrate to the United States and obtain a legal residency here (No. 3 above). We call nonresident aliens those foreigners who just come to the United States for a temporary reason such as vacation, brief business, study, or temporary employment, e.g., come on a tourist/business, student, or work visa (No. 2 above), or who come here illegally without inspection (No. 4 above).

Our immigration and tax laws distinguish between a resident and nonresident alien and attach different rights and consequences to them depending on whether one is a “resident alien” or “non-resident alien.” But we do not use the word “foreigner” to demonstrate whether that person is or is not a resident of the United States. Rather, if that person is not a legal resident, we just simply call the person a “nonresident alien.” If the person was not physically located in the United States, we just call the person a “foreigner” and not add the "alien" description to him or her with the qualifier "resident" or “nonresident." What this means is that one can be an “alien” even if not a resident of the United States.

Continued . . .; October 9, 2012 at 2:27 PM
Mario Apuzzo, Esq. said...: II of II

Additionally, in the letter and spirit of the Fifth and Fourteenth Amendment, any "person" who should fall within the jurisdiction of the United States or any State has due process and equal protection rights in the United States. Here "person" covers “citizens,” “resident aliens,” and “nonresident aliens.” As can be seen, that person need not be a "citizen" of the United States. That person can be a “resident alien” or “nonresident alien.” That person can be a “foreigner” who is or was physically present in the United States. Whether someone who is a foreigner (foreign "citizen") and is not or was not physically present in the United States can make a claim under the Fifth or Fourteenth Amendment is doubtful. Some type of connection to the United States to create jurisdiction in the United States and a deprivation of covered rights would have to be shown.

Barack Obama Sr. came to the United States legally on a student visa. He did not come to the United States to live and work on a permanent basis which would have made him an immigrant. While physically present in the United States, he was both a “foreigner” and a “nonresident alien.” As a “nonresident alien” with no intention to make America, legally or illegally, his home, he did not have his domicile in the United States.; October 9, 2012 at 2:28 PM
MichaelN said...: BrianH said...

"Let's look at the passage you so gleefully trot out.

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.

Michael, now pay close attention: notice that little word "nor" following the clause you keep capitalizing? In English, "nor" (like "or") is disjunctive in operation. That means that "he was not born under the ligeance of a subject" and "nor under the protection of the King" are separate, independent situtations.

The child of a hostile invader is not a natural born subject because he fits NEITHER of the two situations in which children born on English soil are NBS: 1) "born under the ligeance of a subject" (i.e., children of subjects) or 2) "under the protection of the King" (i.e., children of ALIENS IN AMITY whom Blackstone freely recognizes are also NBS!!)

But in your overeagerness you seize upon the first situation, put that in bold or all caps, while overlooking the second. A very elementary blunder, Michael. Back to school for you.

c) a native born child CANNOT be a subject born (aka natural born subject)unless "born under the ligeance of a subject".

OR . . . (Michael, what's the second way in which a native born child can be born a subject??) if his parent was "under the protection of the King." So children of aliens in amity are thus also natural born subjects."

Reply:

So desperate you are BrianH, you are ahving an "ark" attack

Here, this might help you, from Coke.....

"Ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him, and he is called their liege Lord, because he should maintain and defend them."

It's all about the ligeance of the father.

As it can be seen, your ridiculous attempt to "ark" Calvin's case is merely your own fantastic creature.

Here's some more for you to choke on.

Coke:

"But between the Sovereign and the subject there is without comparison a higher and greater connexion: for as the subject oweth to the King his true and faithful ligeance and obedience, so the Sovereign is to govern and protect his Subjects, |[5 a] regere etprotegere subditos suos:30.so as between the Sovereign and subject there is duplex et reciprocum ligamen; quia sicut subditus regi tenetur ad obedientiam, ita rex subdito tenetur ad protectionem: merito igitur ligeantia dicitur a ligando, quia continet in se duplex ligamen.31

[31. ][Ed.: a dual and reciprocal tie, because just as the subject is bound in obedience to the king, so the king is bound to the protection of the subject; and therefore allegiance is properly so called from ligando (tying) because it contains within itself A TWO-WAY TIE.]"

and

"Therefore it is truly said that protectio trahit subjectionem, et subjectio protectionem.33

[33. ][Ed.: protection attracts subjection, and subjection protection.]"

and

"[151. ][Ed.: An alien born is of foreign birth or foreign allegiance, and is also called peregrinus (foreigner), alien, exotic, stranger, etc. A stranger is a subject who is born outside the land, that is, outside the king’s power.]"

ANOTHER EPIC ARKING FAILURE on your part BrianH. lol

Try again.; October 9, 2012 at 5:08 PM
MichaelN said...: BrianH said ....

"It seems you and the U.S. Supreme Court have differing views here. In the WKA case, as I've noted, J. Gray first lays down the clear jus soli rule which held true under the ECL:"

"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."

Very clearly stated. And nothing there about such aliens being actually "subjects." Nope. Pure jus soli rule (with the noted exceptions for invaders and diplomats)."

Yes it is interesting and disappointing that Gray failed to accurately report the English common law principle of jus sanguinis.

Yet Gray did mention "ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation", which are examples of those who were also aliens but were not subjects.

All others aliens were in fact subjects, by local allegiance and it was only the native-born child, who was born under the "ligeance of a subject" who could be a "subject born".

This plain to see when we refer to precisely the same ECL case that Gray relied on and look at what Gray failed to mention.

Calvin's case:

" ... 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,...."; October 9, 2012 at 5:22 PM
Robert said...: So how did Blackstone, Coke, Waite, and Black figure the citizenship of an undocumented alien like Mr. Obama?

How did they deal with persons, citizens or non citizens, presenting forged identification documents?

We are dealing with an individual who has never legally documented his place of birth or his parentage beyond the level of hearsay. How can any nation claim him to be a citizen or subject? Is he British, Kenyan, American, Indonesian, or what? Where's the proof?; October 9, 2012 at 6:01 PM
BrianH said...: @MichaelN

So you conveniently skip over the my reply post to you and instead address me via my post to Mario.

Now, my prior post to you dealt directly with your apparent favorite excerpt from Calvin's Case. So here it is again:

******

"Michael, Michael. In July I had to set you down and give you a lesson in the fundamentals of paragraph structure. Now it seems you need remedial work on basic grammar and syntax, too.

Blackstone, of course, recognizes that the children of subjects are natural born subjects. And, as I've quoted him, Blackstone ALSO recognizes that the children of ALIENS (in amity) who are born on English soil are also natural born subjects. Are we to suppose that Calvin's case says otherwise? The answer is "no."

Let's look at the passage you so gleefully trot out.

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.

Michael, now pay close attention: notice that little word "nor" following the clause you keep capitalizing? In English, "nor" (like "or") is disjunctive in operation. That means that "he was not born under the ligeance of a subject" and "nor under the protection of the King" are separate, independent situtations.

The child of a hostile invader is not a natural born subject because he fits NEITHER of the two situations in which children born on English soil are NBS: 1) "born under the ligeance of a subject" (i.e., children of subjects) or 2) "under the protection of the King" (i.e., children of ALIENS IN AMITY whom Blackstone freely recognizes are also NBS!!)

But in your overeagerness you seize upon the first situation, put that in bold or all caps, while overlooking the second. A very elementary blunder, Michael. Back to school for you."

******

So I point out how your habit of putting "not born under the ligeance of a subject" in ALL CAPS seems to blind you to the second portion -- "nor under the protection of the King" (i.e., the portion that shoots down your attempt to make this look jus sanguinis. And your "response" this time is . . . simply requote the same passage --

"... 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,...."

-- only this time through careful use of the ellipsis you omit the problematic last phrase entirely!! Brilliant!!!

If you only include in a quote the words that you like -- and omit all the words that are a problem for your position -- you will convince yourself 100 percent of the time. And you will convince no one else.; October 9, 2012 at 7:47 PM
MichaelN said...: @ BrianH

Further to my last, prior post.....

It is not because a native-born child in England, was born to a foreign diplomat, enemy invader, etc that the child cannot be a NBS........ it's BECAUSE those people are NOT SUBJECTS, and the child born to non-subjects, was "not born under the ligeance of a subject" and thus is an "alien born" by "foreign allegiance".; October 9, 2012 at 11:25 PM
MichaelN said...: None of the legal expert commentators in the framing era, ever proposed that native-birth alone sufficed to make an English "natural born subject" or "born subject".

All they did was speak in general terms, concluding that a child born native, to an alien-born father, would be a NBS, IF the father was not one of the few alien-born exceptions to the rule, i.e. was without local allegiance.

Here's what Blackstone stated, can anyone see that he said that native-birth alone, was sufficient to make an English NBS?

"The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such."

Here's what Lord Coke stated.

"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."

The enemy (father) had no local ligeance, he was not a subject, but his child was native-born, and not born under the ligeance of a subject, the child was therefore an alien-born by "foreign allegiance, and not a "natural born subject" or a "subject born".

Both Blackstone and Horace Gray have generalized and have not stated fully the jus sanguinis requirement that makes a "natural born subject".; October 10, 2012 at 12:32 AM
MichaelN said...: @ BrianH.

Whilst waiting for Mario to put my unpublished post up, I will leave you with this dumbed-down abstract from Lord Coke.

" though he be born upon his soyl, and under his meridian, for that he was NOT BORN UNDER THE LIGEANCE OF A SUBJECT,...."

The ligeance and protection are part and parcel of ONE SITUATION.

Coke:

"Concerning the local obedience, it is observable, that as there is a local protection on the King’s part, so there is a local ligeance of the subject’s part."

"But between the Sovereign and the subject there is without comparison a higher and greater connexion: for as the subject oweth to the King his true and faithful ligeance and obedience, so the Sovereign is to govern and protect his Subjects, |[5 a] regere etprotegere subditos suos:30Note.so as between the Sovereign and subject there is duplex et reciprocum ligamen; quia sicut subditus regi tenetur ad obedientiam, ita rex subdito tenetur ad protectionem: merito igitur ligeantia dicitur a ligando, quia continet in se duplex ligamen.31 And therefore it is holden in 20 H. 7, 8. that there is a liege or ligeance between the King and the subject.

[31. ][Ed.: a dual and reciprocal tie, because just as the subject is bound in obedience to the king, so the king is bound to the protection of the subject; and therefore allegiance is properly so called from ligando (tying) because IT CONTAINS WITHIN ITSELF A TWO-WAY TIE.]"

Now let's see if YOU BrianH have the guts to admit you are WRONG!; October 10, 2012 at 12:47 AM
MichaelN said...: BrianH said ....

"If you only include in a quote the words that you like -- and omit all the words that are a problem for your position -- you will convince yourself 100 percent of the time. And you will convince no one else."

Interesting you say that BrianH.

So do you suppose that Blackstone and Horace Gray might have done something like this, i.e. by not making ANY mention of THE MOST IMPORTANT AND CRUCIAL ELEMENT, i.e. that the "alien" parents they referred to MUST BY NECESSITY BE A SUBJECT BY LOCAL LIGEANCE and that a native-born child in England WOULD BE AN "ALIEN BORN" by "FOREIGN ALLEGIANCE" if "NOT BORN UNDER THE LIGEANCE OF A SUBJECT"?; October 10, 2012 at 1:02 AM
MichaelN said...: @ BrianH.

In case you (conveniently) "forgot".

Here's what another learned commentator had to say on the subject...

(which can be found here)
http://www.uniset.ca/naty/parry.htm

CLIVE PARRY
M.A., LL.B.

Fellow and Tutor of Dowling College and Lecturer in the University of Cambridge

BRITISH NATIONALITY LAW

AND THE HISTORY

OF NATURALISATION

MILANO — GIUFFRÈ — 1954

Parry says....

"1) The principle of the ius sanguinis was AT ALL TIMES reluctantly admitted in ENGLISH or British nationality LAW and practice and imperfectly understood."

and

"In the final analysis the question in any nationality case is whether a person is a subject or an alien. He may be the former because born within the dominions of the sovereign or Crown in virtue, that is to say, of the general PRESUMPTION that the allegiance is co-extensive with those dominions, or in virtue of the jus soli. Or he may be such by descent — because born of liege parents, or iure sanguinis. And the principles of the jus soli and the jus sanguinis do not stand opposed to one another. In MOST legal systems they are to be found INTERTWINED, each supplying the limitations of the other. But the degree to which one or the other has been emphasised at any time may well have varied."; October 10, 2012 at 1:30 AM
BrianH said...: @MichaelN

As it can be seen, your ridiculous attempt to "ark" Calvin's case is merely your own fantastic creature.

Here, again, is the U.S. Supreme Court summary of the ECL, including Calvin's Case, along with English authorities Cockburn and Dicey:

"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."

There it is in all it's pure jus soli splendor. It's a bit of a bummer, isn't it, when it's a U.S. Constitutional issue before you and the U.S. Supreme Court views a matter differently than you do?

Here's some more for you to choke on.

Yes, your attempt to keep shoving more out-of-context, irrelevant excerpts my way might tend to cause choking.

Both Blackstone and Horace Gray have generalized and have not stated fully the jus sanguinis requirement that makes a "natural born subject".

Well, thank the stars that we have The Great Legal Sage from Down-Under -- MichaelN -- to show us how both a foremost commentator on the English common law and a also a majority opinion of the U.S. Supreme Court both just missed the mark a bit!! What ever would we do without Michael here to set the historical record straight!? Amazing how you can cut and paste a few out-of-context passages and sentence fragments, and, based on that alone, declare these other authorities to be deficient.

Gosh, the tragedy in all this is that you weren't there back when Blackstone was writing to set him straight. And you weren't there to set the U.S. Supreme Court straight either.

And now, because you weren't there, President Obama remains in office.

Oh, to think how the world would be so different if only Michael had been there . . .; October 10, 2012 at 2:47 PM
MichaelN said...: BrianH said ....

"Here, again, is the U.S. Supreme Court summary of the ECL, including Calvin's Case, along with English authorities Cockburn and Dicey:"

Reply:

I notice you haven't the guts to admit your last pathetic and ridiculous ark attempt was an EPIC FAILURE.

Here, dumbed-down even dumber.

"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,"

[The aliens who were "within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign", WERE SUBJECTS.]

Coke:
"The third is ligeantia localis46 wrought by the law, and that is when an alien that is in amity cometh into England, because as long as he is within England, he is within the King’s protection; therefore so long as he is there, he oweth unto the King a local obedience or ligeance, for that the one (as it hath been said) draweth the other."

That's why if an alien was not a subject, then his native-born child could not be a "subject born" or "natural born subject" or ANY kind of "subject", because the child was "not born under the ligeance of a subject" and the child would thus be an "alien born" by the "foreign allegiance" of the father.]

Your arking continues.....

" .... and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born."

The conclusion is saying that every child born to alien parenst who were SUBJECTS was a NBS.

BrianH said....
"There it is in all it's pure jus soli splendor. It's a bit of a bummer, isn't it, when it's a U.S. Constitutional issue before you and the U.S. Supreme Court views a matter differently than you do?"

Reply:
BrianH, it is no different to what I have already taught you.

It is true that every child born of aliens who were subjects (i.e. "aliens who were not 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")was a NBS, BECAUSE of the fathers being subjects, and those children who might have been native-born to foreign ambassador, diplomats, enemy invaders, would not be NBS and would be alien born BECAUSE the fathers albeit still aliens, had no local allegiance and the children would be "not born under the ligerance of a subject".

Another EPIC FAILURE on your part BrianH....... keep squirming, not only is your pathetic hopey-changey arking ridiculous, it is also hilarious.

Maybe you could audition for a slot on Comedy Central.; October 10, 2012 at 5:20 PM
MichaelN said...: @ BrianH.

Here's how simple it really is.

17th century English common law.

All alien born visitors to England who were in amity, were subjects by local allegiance.

All alien born visitors to England who were foreign ambassadors, diplomats or hostile enemy were without local allegiance and were thus not subjects.

All native born children who were born to aliens and under the local allegiance of an alien born subject, were natural born subjects.

All native born children who were born also to aliens and NOT under the local allegiance of an alien born subject, were alien born and NOT subjects at all.

To be native-born to an alien and be a "subject born" or a "natural born subject", a child must of necessity be born "UNDER THE LIGEANCE OF A SUBJECT".

Native birth was NOT SUFFICIENT.; October 10, 2012 at 5:35 PM
BrianH said...: @MichaelN

I will leave you with this dumbed-down abstract from Lord Coke.

" though he be born upon his soyl, and under his meridian, for that he was NOT BORN UNDER THE LIGEANCE OF A SUBJECT,...."

The ligeance and protection are part and parcel of ONE SITUATION.

Dumbed-down, or in other words, edited so as to keep out the portion that creates problems for you.

"Nor" is disjunctive. A subject is already understood to be under the protection of the King; so by conflating these two situations you make the second situation ("nor under the protection of the King") so much superfluous verbiage. The latter situation is distinct and covers the situation of the the child who is natural born to an ALIEN in amity with the King.

Now let's see if YOU BrianH have the guts to admit you are WRONG!

I was obviously wrong to think that I could cut through the fog of your confusion and see you graduate the remedial grammar and syntax lesson.

Here's what another learned commentator had to say on the subject...

"In the final analysis the question in any nationality case is whether a person is a subject or an alien. He may be the former because born within the dominions of the sovereign or Crown in virtue, that is to say, of the general PRESUMPTION that the allegiance is co-extensive with those dominions, or in virtue of the jus soli.

You are so obtuse you don't realize that your own sources you quote shoot you in the foot. The general presumption is that jus soli operates to make the person born on the soil of the sovreign "natural born." Duh.

And the principles of the jus soli and the jus sanguinis do not stand opposed to one another.

Hey, no kidding. In England, like the U.S., jus soli principles make the person born on the soil "natural born" irrespective of the citizenship/subjecthood of the parents, and jus sanguinis principles operate to make the child of citizens/subjects who are born outside of the country/realm also "natural born."; October 10, 2012 at 5:39 PM
MichaelN said...: @ BrianH.

You still haven't admitted you were WRONG, when you dug-up this ridiculous arking garbage .....

BrianH arking said ...
"Let's look at the passage you so gleefully trot out.

"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."

Michael, now pay close attention: notice that little word "nor" following the clause you keep capitalizing? In English, "nor" (like "or") is disjunctive in operation. That means that "he was not born under the ligeance of a subject" and "nor under the protection of the King" are separate, independent situtations.

The child of a hostile invader is not a natural born subject because he fits NEITHER of the two situations in which children born on English soil are NBS: 1) "born under the ligeance of a subject" (i.e., children of subjects) or 2) "under the protection of the King" (i.e., children of ALIENS IN AMITY whom Blackstone freely recognizes are also NBS!!)"

....then I showed you how pathetically WRONG you were, when I taught you a lesson on the English common law, i.e....

Coke:

"But between the Sovereign and the subject there is without comparison a higher and greater connexion: for as the subject oweth to the King his true and faithful ligeance and obedience, so the Sovereign is to govern and protect his Subjects, |[5 a] regere etprotegere subditos suos:30.so as between the Sovereign and subject there is duplex et reciprocum ligamen; quia sicut subditus regi tenetur ad obedientiam, ita rex subdito tenetur ad protectionem: merito igitur ligeantia dicitur a ligando, quia continet in se duplex ligamen.31

[31. ][Ed.: a dual and reciprocal tie, because just as the subject is bound in obedience to the king, so the king is bound to the protection of the subject; and therefore allegiance is properly so called from ligando (tying) because it contains within itself A TWO-WAY TIE.]"

and

"Therefore it is truly said that protectio trahit subjectionem, et subjectio protectionem.33

[33. ][Ed.: protection attracts subjection, and subjection protection.]"

and

"[151. ][Ed.: An alien born is of foreign birth or foreign allegiance, and is also called peregrinus (foreigner), alien, exotic, stranger, etc. A stranger is a subject who is born outside the land, that is, outside the king’s power.]"

YOU CHOKED, and COWERED away from acknowledging the truth of the matter, by regurgitating the same 'ol, same 'ol arking BS in your usual dishonest wimpy show of evasion.

But hey, that's what you do, you make false and deliberately misleading statements, with all your pompous false bravado, then cower, evade and hide when you get yourself SMACKED-DOWN by the truth, which you can't bear to face.

YOU LOSE!; October 10, 2012 at 6:41 PM
MichaelN said...: @ BrianH

Tell me what did Lord Coke mean by ...

"it is ...NEITHER THE CLIMATE NOR THE SOYL, but ligeantia and obedientia that make the subject born"

Isn't Coke saying that native-birth is not sufficient to make a natural born subject aka subject born?

Or do you have another la-la land fantastic explanation for what Coke said?

Why would the Founding Fathers and Framers opt for native-birth alone to suffice to make a US NBC, when even the 17th century ECL itself (which you claim was followed), rejected native-birth alone to suffice to make a NBS?

Now try and pull yourself together Brian, you are arking all over the place.; October 10, 2012 at 9:49 PM
BrianH said...: @MichaelN

You still haven't admitted you were WRONG, when you dug-up this ridiculous arking garbage .....

How can I be wrong citing to relevant U.S. Supreme Court passages?

"But between the Sovereign and the subject there is without comparison a higher and greater connexion: for as the subject oweth to the King his true and faithful ligeance and obedience, so the Sovereign is to govern and protect his Subjects, |[5 a] regere etprotegere subditos suos:30.so as between the Sovereign and subject there is duplex et reciprocum ligamen; quia sicut subditus regi tenetur ad obedientiam, ita rex subdito tenetur ad protectionem: merito igitur ligeantia dicitur a ligando, quia continet in se duplex ligamen.31

No one is denying that Subjects owe an allegiance to the King. Coke and Blackstone call that a "perpetual" allegiance. What you're missing is that Coke and Blackstone ALSO recognize there is a reciprocal obligation of protection from the King and an allegiance owing from ALIENS IN AMITY. That is termed a "temporary" allegiance.

YOU CHOKED, and COWERED away from acknowledging the truth of the matter, by regurgitating the same 'ol, same 'ol arking BS in your usual dishonest wimpy show of evasion.

Your attempted sarcastic barbs are as lame as your arguments. But that makes them funny.

Tell me what did Lord Coke mean by ...

"it is ...NEITHER THE CLIMATE NOR THE SOYL, but ligeantia and obedientia that make the subject born"

Isn't Coke saying that native-birth is not sufficient to make a natural born subject aka subject born?

That line prefaces his observation about hostile invaders. Native birth in the case of children of hostile invaders isn't sufficient because there is no allegiance in that situation. But native birth is sufficient to make the child "natural born" in EITHER of TWO SITUATIONS: either 1) children of subjects (those born under the "ligeance of a subject")OR 2) children of ALIENS IN AMITY (those born "under the protection of the King").

Your error is that anytime you see the word "ligeance" your feeble mind can only associate that with "subject." But Coke and Blackstone and the U.S. Supreme Court also recognize that "temporary" allegiance due and protection owing to friendly ALIENS.

Join the greater minds here, Michael.

Why would the Founding Fathers and Framers opt for native-birth alone to suffice to make a US NBC, when even the 17th century ECL itself (which you claim was followed), rejected native-birth alone to suffice to make a NBS?

Justice Gray in WKA notes that the "same rule" held true under American common law up through and beyond the establishment of the Constitution: native-born children were "natural born," even as to alien parents, except in those same situations of the hostile invader or foreign diplomat.; October 11, 2012 at 10:22 AM
Mario Apuzzo, Esq. said...: You have got to love Mr. Conflator himself, Arker BrianH. Looks like he really did spend too much time on the beach under the sun looking for sand. He complains that MichaelN has conflated “those born under the ligeance of a subject” with those “born under the protection of the King, ” and that he has not given any meaning to the latter phrase. Wow, pretty amazing stuff coming from the mouth of an Arker.

Too bad that Arker Brian H, like all his Obot supporters, also does not complain about conflating a “natural born Citizen” with a “citizens of the United States.”

Too bad for Arker BrianH that he also does not realize that there is no difference between “those born under the ligeance of a subject” and those “born under the protection of the King.” Under English common law, all those who were physically present in the King’s dominions were entitled to his protection, unless they were enemy aliens or foreign ambassadors, royalty, or military invaders. These persons, while in the King’s dominion as “aliens,” were also “subjects” of the King, for they owed the King allegiance, obedience, faith, and loyalty which only a King’s “subject” could owe him. In return for that allegiance and obedience, the King gave these “alien subjects” protection. In contradistinction, the King could not expect such allegiance and obedience from enemy aliens or foreign ambassadors, royalty, or military invaders. Hence, these persons were not his “subjects” and were not entitled to his protection. So if one was “born under the ligeance of a subject,” he had to also be “born under the protection of the King.” It could not be any other way. Therefore, there is no difference between the two clauses.

From this the English common law concluded:

"The “children of aliens, born here in England, are, generally speaking, natural-born subjects (8) [8 Unless the alien parents are acting in the realm as enemies; for my Lord Coke says, it is not caelum nec solum [[climate nor soil]], but their being born within the allegiance, and under the protection of the king. 7 Co., 18. a.], 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 an alien. (9)"[9 The late Vinerian professor informs us, that, ‘in this respect there is not any difference between our laws and those of France. In each country, birth confers the right of ‘naturalization.’ 1 Woodd. 386.”].

William Blackstone, Commentaries, Book I, 373 (1765).

So “generally speaking,” a child born in the King’s dominion to an “alien” was a “natural-born subject.” When we look beyond what was “generally speaking,” what Blackstone was really saying was that a child born in the King’s dominion to an “alien subject” was a “natural-born subject.” The one example he give about alien enemies shows that those aliens were not “alien subjects.” And neither were “alien subject” who were foreign ambassadors, royalty, or any other type of enemy aliens. All other aliens who found themselves within the King’s dominion were “alien subjects” and if they gave birth to children in the King’s dominion, their children, having been born to “subjects” in the King’s dominion, were “natural-born subjects.”

Unlike the English who considered even "aliens" as "subjects" of the King, in the United States, we have never allowed any "alien" to be considered a "citizen" without satisfying our common law and immigration and naturalization laws.

Vinerian Professor Richard Wooddeson’s (1777–1793) comment which Blackstone cites and quotes approvingly in footnote 9, shows that England, France, and eventually the United States, all provided for naturalization at birth for children “born within the jurisdiction” to alien parents. But under the Founders’ and Framers’ definition of a “natural born Citizen,” such child, naturalized to be a “citizen of the United States” at birth, was as St. George Tucker explained surely not an Article II “natural born Citizen.”; October 11, 2012 at 1:34 PM
BrianH said...: @MarioA

He complains that MichaelN has conflated “those born under the ligeance of a subject” with those “born under the protection of the King, ” and that he has not given any meaning to the latter phrase.

He hasn't. He treats them as speaking to the identical situation. In his words: "The ligeance and protection are part and parcel of ONE SITUATION."

Too bad that Arker Brian H, like all his Obot supporters, also does not complain about conflating a “natural born Citizen” with a “citizens of the United States.”

Because I've seen no one conflate them. "Citizen" includes both the "natural born" and "naturalized." So they overlap, but are not treated as the same things.

Too bad for Arker BrianH that he also does not realize that there is no difference between “those born under the ligeance of a subject” and those “born under the protection of the King.”

So I'm to conclude that Lord Coke was just being needlessly redundant? "Nor" is disjunctive in operation (apparently you need remedial work on grammar and syntax, too). So the text very much indicates two differing situations. When he writes: "he was not born under the ligeance of a subject, nor under the protection of the King" the latter phrase simply cannot be understood as just a needless repetition of the former.

That's a wishful, forced reading imposed by Birthers who in vain try to pretend the law in England was not jus soli in the manner J. Gray in WKA states it. So when Coke and Blackstone and Horace Gray speak of children of aliens being natural born subjects, Birthers can delude themselves into believing these REALLY were "subjects."

In return for that allegiance and obedience, the King gave these “alien subjects” protection.

"Alien subjects?" I'm falling over laughing. Please show where Coke or Blackstone or any writer describes such persons using that oxymoronic term. That is just ridiculous.

Therefore, there is no difference between the two clauses.

Just needless verbiage on Lord Coke's part, eh?

"The “children of aliens, born here in England, are, generally speaking, natural-born subjects[.]"

Do you notice how these are called "aliens." Not "subjects" nor "alien subjects?" And why is that, might we figure? Oh, how about because "born under the ligeance of a subject" and "born . . under the protection of the King" aren't seen by Blackstone nor Lord Coke as being identical situations!!!
The former speaks to "subjects;" the latter to "aliens." And that's why Blackstone calls them "aliens.

See? No need to coin fanciful phrases like "alien subjects" as part of some "oh, what he REALLY meant to say" Birther spin.

So “generally speaking,” a child born in the King’s dominion to an “alien” was a “natural-born subject.” When we look beyond what was “generally speaking,” what Blackstone was really saying . .

"Generally speaking" states the usual case that children of aliens were natural born subjects, while allowing for the exceptional cases (children of aliens who were hostile invaders and diplomats).

" . .was that a child born in the King’s dominion to an “alien subject” was a “natural-born subject.”

Blackstone never uses the term "alien subject." You're in twist and spin mode here.; October 11, 2012 at 4:06 PM
MichaelN said...: Here BrianH.

Dumbing it down to the very basics...... "observe".

Lord 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 ...."

Do you get it?

It's NOT native-birth that makes a "natural born subject" .......YOU LOSE!; October 11, 2012 at 4:27 PM
BrianH said...: @MarioA

Here's more on why your attempt to rewrite Blackstone to be speaking of "alien subjects" when he uses the term "alien" is not only silly, but futile.

As noted on this thread, in WKA Justice Gray describes the ECL rule in jus soli terms:

"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."

The astute reader can observe there is NOTHING in Gray's words (nor in the quotes he adduces from English sources) about these aliens being in actuality "subjects" or "alien subjects" or "persons called 'aliens,' who really should be construed as 'subjects'". Nope. These are simply aliens in the view of the court majority.

And then Gray -- in the next sentence -- states that the "same rule" had been the rule under American common law:

"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 this "same rule" (i.e., the same jus soli rule which had just be described as operating in England to make children of aliens "natural born citizens," is described has having been in place in American from colonial times up and through the establishment of the Constitution. So it's abundantly clear that per WKA, at the time of the Constitution, it was the rule that children born in America to alien parents were likewise "natural born citizens." (In fact, later Gray cites with approval a case stating that "subject" and "citizen" were "interchangeable terms," the terminology shifting due to change in governance.)

Now, in your prior post, you did a most splendid spin-job in which you took the clear term "alien" and morphed it into this new term "alien subject." I can't wait to see what the spin machine concocts here out of "same rule." "Same but really different?" "Not comparable sameness?" "Similar dissimilarity?"

Those are some helpful suggestions in case you're stumped. But I'm sure you'll dazzle us with your own creation.; October 11, 2012 at 4:34 PM
MichaelN said...: BrianH said .....

"But native birth is sufficient to make the child "natural born" in EITHER of TWO SITUATIONS: either 1) children of subjects (those born under the "ligeance of a subject")OR 2) children of ALIENS IN AMITY (those born "under the protection of the King")."

You are in arking denial again BrianH, and speaking GARBAGE.

Here once again so you can get to swallow it...

Quoting Lord Coke - Calvins case (which Horace Gray of Wong Kim Ark fame, worshiped as the holy grail of common law)

"so as between the Sovereign and subject there is duplex et reciprocum ligamen; quia sicut subditus regi tenetur ad obedientiam, ita rex subdito tenetur ad protectionem: merito igitur ligeantia dicitur a ligando, quia continet in se duplex ligamen.31 [see translation below]

And therefore it is holden in 20 H. 7, 8. that there is a liege or ligeance between the King and the subject. And Fortescue, cap. 13. Rex ad tutelam legis, corporum, et bonorum subditorum erectus est.32 And in the Acts of Parliament of 10 Rich. 2. cap. 5. and 11 Rich. 2. cap. 1. 14 Hen. 8. cap. 2. &c. Subjects are called liege people: and in the acts of Parliament in 34 Hen. 8. cap. 1. and 35 Hen. 8. cap. 3., &c. the King is called the liege Lord of his Subjects. And with this agreeth M. Skene in hisbook de expositione verborum (which book was cited by one of the Judges which argued against the Plaintiff) Ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him, and he is called their liege Lord, because he should maintain and defend them."

"[31. ][Ed.: a dual and reciprocal tie, because just as the subject is bound in obedience to the king, so the king is bound to the protection of the subject; and THEREFORE ALLEGIANCE is properly so called from ligando (tying) because it CONTAINS WITHIN ITSELF A TWO-WAY TIE.]

YOU LOSE! ......... learn to live with it.

But do you have the guts to admit it?; October 11, 2012 at 4:45 PM
MichaelN said...: BrianH arking said ...

"Blackstone never uses the term "alien subject." You're in twist and spin mode here."

So what?

Blackstone never uses the terms "natural born Citizen" or "citizen of the United States".

14th Amendment never uses the term "natural born Citizen".

Wong Kim Ark decision never uses the term "natural born Citizen".

YOU LOSE! ...... lean to live with it.; October 11, 2012 at 4:54 PM
Mario Apuzzo, Esq. said...: BrianH,

Your response to my comment is nothing but your own personal opinion without any reliance on the language and operation of the English common law

Unlike the English who considered even "aliens" as "subjects" of the King, in the United States, we have never allowed an "alien" to be considered a "citizen" without satisfying our common law and immigration and naturalization laws. Moreover, in the United States, our citizenship and naturalization law prior to U.S. v. Wong Kim Ark (1875), as acknowledged by American “common law” that was confirmed by Minor v. Happersett (1875) and confirmed by the Naturalization Acts of 1790, 1795, 1802, and 1855, was always that only a “citizen” could beget a “citizen.” Under no circumstance, could an alien beget a “citizen.”; October 11, 2012 at 5:03 PM
MichaelN said...: @ BrianH.

Lord Coke - Calvin's case:

" Concerning the local obedience, it is observable, that as there is a local protection on the King’s part, so there is a local ligeance of the subject’s part."

They are combined in ONE SITUATION.

YOU LOSE!; October 11, 2012 at 5:08 PM
BrianH said...: @MarioA

Your response to my comment is nothing but your own personal opinion without any reliance on the language and operation of the English common law.

Actually, my response focused on the precise language used by Lord Coke and Wm. Blackstone. But I understand your desire not to have to show who else has ever used the term "alien subjects" that you seem to have invented; so it's no doubt a best attempt to make it seem like there's nothing in my prior posts that needed reply.

But let us not lose sight that the ultimate issue here is an American constitutional law question. On that point, the ECL is but one part of the analysis to understanding our Constitutional terms. So, to that end, I've now twice put these passages and question before you:

*****

"As noted on this thread, in WKA Justice Gray describes the ECL rule in jus soli terms:

"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."

The astute reader can observe there is NOTHING in Gray's words (nor in the quotes he adduces from English sources) about these aliens being in actuality "subjects" or "alien subjects" or "persons called 'aliens,' who really should be construed as 'subjects'". Nope. These are simply aliens in the view of the court majority.

And then Gray -- in the next sentence -- states that the "same rule" had been the rule under American common law:

"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 this "same rule" (i.e., the same jus soli rule which had just be described as operating in England to make children of aliens "natural born subjects," is described as having been in place in American from colonial times up and through the establishment of the Constitution. So it's abundantly clear that per WKA, at the time of the Constitution, it was the rule that children born in America to alien parents likewise were "natural born," just as children born in England of alien parents were "natural born."

That's what "the same rule" indicates. And that indication comes from our U.S. Supreme Court.

So the question then is: why should anyone give you the least credence when you try to spin this to make it seem that as to the "natural born" status of children born of aliens, the common law rules in England and America were different?; October 11, 2012 at 11:53 PM
MichaelN said...: @BrianH.

"Under the ligeance of a subject" and "under the protection of the King" are combined in ONE SITUATION.

This has been proven, and your failure to acknowledge that fact by re-regurgitating your failed argument is at best mere nuisance.

As well as that....

Nowhere in 17th century English common law was it stated or held that native-birth alone sufficed to make an English "natural born subject"

As well as that ....

None of the legal expert commentators in the framing era, ever stated or held that native-birth alone was sufficient to make an English "natural born subject" or a US "natural born Citizen".

In all instances, it was the ligeance of the father, or lack of ligeance, which was paramount and essential in determining the "subject born" or "alien born" status of a child.

No amount of your arking bleating can change these proven facts.

YOU ARE A POOR LOSER!; October 12, 2012 at 1:11 AM
BrianH said...: @MichaelN

Nowhere in 17th century English common law was it stated or held that native-birth alone sufficed to make an English "natural born subject"

As well as that ....

None of the legal expert commentators in the framing era, ever stated or held that native-birth alone was sufficient to make an English "natural born subject" or a US "natural born Citizen"

You keep phrasing the question incorectly, and thus you remain confused.

The real question at issue is whether a child can be "natural born" despite having a parent(s) who is an alien. The ECL answered that "yes." And a wealth of commentators at the time of the framing of the Constitution answered that "yes." The only time the answer was "no" was in the case where the parent was a hostile invader or foreign diplomat. But the "general rule" was that native-born children of alien parents were "natural born."

And paramount in this discussion is that the U.S. Supreme Court has recognized this explicitly. Michael, perhaps you can help out Mario here and address the point I've now three times put before him. He's been rather silent each time. Since I find putting him into a position of "I can't answer that, so I'll just pretend you didn't point this out" to be rather fun, here it is again:

********

"As noted on this thread, in WKA Justice Gray describes the ECL rule in jus soli terms:

"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."

The astute reader can observe there is NOTHING in Gray's words (nor in the quotes he adduces from English sources) about these aliens being in actuality "subjects" or "alien subjects" or "persons called 'aliens,' who really should be construed as 'subjects'". Nope. These are simply aliens in the view of the court majority.

And then Gray -- in the next sentence -- states that the "same rule" had been the rule under American common law:

"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 this "same rule" (i.e., the same jus soli rule (modified as to the noted exceptions) which the Court described as having operated in England to make children of aliens "natural born subjects," is described as having been in place in American from colonial times up and through the establishment of the Constitution. So it's abundantly clear that per WKA, at the time of the Constitution, it was the rule that children born in America to alien parents were "natural born," just as children born in England of alien parents were "natural born," (so long as the alien parents were in amity and thus the allegiance implied from that deemed present).

That's what "the same rule" indicates. And that indication comes from our U.S. Supreme Court.

*******

So, Michael, let's again test if you can demonstrate elementary reading comprehension skills. Per the U.S. Supreme Court, what "rule" was "the same" as between the common law of England and the common law of America up through the founding of the Constitution and beyond?; October 12, 2012 at 11:03 AM
Robert said...: BrianH,

Re:
"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."

Nice quote, but since Obama Senior was here as a representative of the Kenyan government within the auspices of a US/Kenyan government student exchange program - AKA "other diplomatic agent of a foreign State" - and because he was openly hostile to our Constitutional form of government - promoting Marxism and other forms of government antithetical to ours, you have just disqualified Junior again.

By the way, you also haven't answered my questions about Junior's forged documentation. How would Coke, Blackstone, etc. address the circumstance of an undocumented or illegally documented person? Here we have lots of great arguments pertaining to parentage and place of birth, but have yet to legally establish who Obama is, who his parents are, and where he was born.; October 12, 2012 at 2:39 PM
BrianH said...: @Robert

Nice quote, but since Obama Senior was here as a representative of the Kenyan government within the auspices of a US/Kenyan government student exchange program - AKA "other diplomatic agent of a foreign State" -

Good grief. An exchange student isn't by virtue of his studies a member of the diplomatic corps. Nice desperate argument.

and because he was openly hostile to our Constitutional form of government - promoting Marxism and other forms of government antithetical to ours, you have just disqualified Junior again.

And neither does that make him a 'hostile invader' like the foreign armies Coke and Blackstone talked about when they referred to "possessing a town or fort."

Do you actually stop and think before you post? Or do you just send whatever thought first crosses your mind? These responses are utterly silly.

By the way, you also haven't answered my questions about Junior's forged documentation.

I don't recall you asking me.

How would Coke, Blackstone, etc. address the circumstance of an undocumented or illegally documented person?

Given that documentation of that sort (e.g., government issued birth certificates, social security cards, etc.) didn't exist in the days of Coke and Blackstone, your question is anachronistic. "Undocumented aliens" isn't a problem much talked about in 17th century England.

Though there may be a case out there where a person's birth on English soil was at issue. One would have to look to see what sort of proof was required. I suspect that if two local newspapers reported the event, that would likely suffice.; October 12, 2012 at 5:10 PM
MichaelN said...: Part 1 of 2

@ Brian H.

You still haven't got a handle on what "alien" really means have you?

Here, from Lord Coke - Calvin's case:

"Every subject that is alienae gentis (id est) alienae ligeantiae, est alienigena:16"

(Every SUBJECT that is)
16. ][Ed.: of an alien people, that is, of an alien allegiance, is an alien born.]"

Nothing about the alien born necessarily being born off-shore, why you say? ..... because it was not of great importance.

ALLEGIANCE was PARAMOUNT, not place of birth.

An alien born is a SUBJECT in England by local ligeance if not a foreign diplomat, etc.

So your petty semantic argument fails.

Here's what you say....

"The real question at issue is whether a child can be "natural born" despite having a parent(s) who is an alien...."

You STILL FAIL.

You are speaking of ECL .... right?

The real question in the ECL case was whether Robert Calvin was inheritable of property, then, Lord Coke proceeded to show that Calvin was indeed able to inherit, because he was a "natural born subject" because he was born under the ligeance of a SUBJECT.

The US case of Wong Kim Ark was only addressing one single question, and that was whether WKA was a "citizen of the United States" under the 14th Amendment, and the decision was in the affirmative, that WKA was a "citizen", but NOT a "natural born Citizen".

Using the term "alien" correctly, it means "alien born".

Ergo: Alien (correctly described as "alien born") merely describes one's original/first allegiance, it is not descriptive of one's current subject or citizen status.

e.g.

The Frenchman who visited England in amity (e.g. in Calvin's case)was still an alien born, yet he was a "natural subject"

An alien born, naturalized to be a US citizen, is still an alien born, even though he/she is a US citizen.

Do you get it?; October 12, 2012 at 6:19 PM
MichaelN said...: Part 2 of 2

BrianH said ....

"The only time the answer was "no" was in the case where the parent was a hostile invader or foreign diplomat."

The only time when an alien born visiting England was not a subject, was when that alien born was a hostile invader or a foreign diplomat, etc and it was because he was not a subject, that his native-born child could not be a subject of ANY stripe.

It was irrelevant as to how or why the alien born father was or was not a subject.

i.e. father not a subject, then child not a subject, even if native born.

BrianH said ...

"But the "general rule" was that native-born children of alien parents were "natural born." "

Garbage!

You are parroting your nonsense mantra in the face of proven facts that show you are WRONG.

You have been shown repeatedly that per ECL, native-birth did NOT SUFFICE to make a "subject born" or "natural born Subject".

In a nut-shell, from Lord Coke per calvin's case....

Native-birth does NOT make a "natural born subject"....

"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"

An alien born can be a native-born ...

[151. ][Ed.: An alien born is of foreign birth or foreign allegiance, and is also called peregrinus (foreigner), alien, exotic, stranger, etc. A stranger is a subject who is born outside the land, that is, outside the king’s power.]

NO WHERE in the 17th century ECL was it held that native-birth alone sufficed to make a "natural born subject" or "subject born" or even ANY kind of "subject".

Now BrianH, YOU explain what this means....

"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"

Go on!

Explain what this means.

Like I have repeatedly shown, you are in denial and refuse to face the proven facts and the truth, the best you have is your babbling repeated hypno-mantra.

YOU LOSE!; October 12, 2012 at 6:20 PM
BrianH said...: @MichaelN

You are speaking of ECL .... right?

I'm speaking of both the ECL and ACL, since the U.S. Supreme Court states that in both places the "same rule" was recognized under which children born on the soil to even alien parents (in amity) were "natural born."

The US case of Wong Kim Ark was only addressing one single question, and that was whether WKA was a "citizen of the United States" under the 14th Amendment, and the decision was in the affirmative, that WKA was a "citizen", but NOT a "natural born Citizen".

If you're so confident about your "not a natural born" conclusion, then why not answer my questions about that case? I'm reproducing it below, for convenience.

Brian: "But the "general rule" was that native-born children of alien parents were "natural born." "

Michael: Garbage!

Blackstone: "The children of aliens, born here in England, are, generally speaking, natural-born subjects, entitled to all the privileges as such." (Book I, Ch. 10).

OK, whatever, Michael. I'm tired of repeating it.

You have been shown repeatedly that per ECL, native-birth did NOT SUFFICE to make a "subject born" or "natural born Subject".

I've never claimed that "native birth alone" (without qualification or exception) was the rule. So what's your point?

Now BrianH, YOU explain what this means....

I've addressed that passage several times now.

But if you want a question that hasn't been addressed. Here it is (for the fifth time):

"(From U.S. v. Wong Kim Ark) "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."

Per the U.S. Supreme Court, what "rule" was "the same" as between the common law of England and the common law of America up through the founding of the Constitution and beyond?

Mario? Robert? Michael? Anyone?; October 12, 2012 at 7:55 PM
cfkerchner said...: "It just happened?" is now a video. Shocking Secrets and Verifiable Facts about Barack Obama the MSM Refuses to Report. Listen to and watch this new video.
http://cdrkerchner.wordpress.com/2012/10/12/it-just-happened-shocking-secrets-and-verifiable-facts-about-barack-obama-the-msm-refuses-to-report/

Bravo Zulu to Don Fredrick and the gentleman who put Don's research and analysis to video.

CDR Charles Kerchner (Ret)
Lehigh Valley PA USA
http://www.protectourliberty.org; October 12, 2012 at 8:49 PM
Robert said...: BrianH,
I'm not at all desperate. The overwhelming evidence is that Mr. Obama is not a natural born citizen.

Further, he has failed to qualify as required by amendment XX.

Not only that, he's committed obviously felonious acts under our law - presentation of false documents. This also disqualifies him from holding any executive office.

You also sidestepped my question about forged documents. Whatever records were kept, how would Coke, Blackstone, etc. (ECL) deal with the presentation of forged/false documents in a quo warranto proceeding?

Answer this question and you'll have a basis for further argument. However, if you have no legal proof of Obama's parentage or place of birth beyond hearsay, you really have no basis upon which to decide his citizenship in the United States. We do keep records here.; October 12, 2012 at 11:58 PM
MichaelN said...: BrianH said ...

"I've never claimed that "native birth alone" (without qualification or exception) was the rule. So what's your point?"

Basically, in 17th century ECL, an "alien" (a shortened version of "alien born")was not necessarily, not a subject.

To say "The children of aliens, born here in England, are, generally speaking, natural-born subjects, entitled to all the privileges as such", does not mean that the "aliens" being referred to were not subjects.

In fact the "aliens" being referred to by Blackstone MUST BY NECESSITY HAVE BEEN SUBJECTS, due by "local ligeance", for if they were not subjects, then their children, even if native-born cannot be "subjects born" and would have been "alien born" by "foreign allegiance"

That is the point!; October 13, 2012 at 5:22 AM
BrianH said...: @Robert

I'm not at all desperate.

When you make arguments like you did (that an exchange student is a "diplomatic agent" and that a student espousing Marxism is akin to a army occupying a town), you look pretty desperate.

The overwhelming evidence is that Mr. Obama is not a natural born citizen.

To the contrary, the overwhelming evidence is that he is. Quod gratis asseritur, gratis negatur.

You also sidestepped my question about forged documents. Whatever records were kept, how would Coke, Blackstone, etc. (ECL) deal with the presentation of forged/false documents in a quo warranto proceeding?

I didn't sidestep it. I pointed out (correctly) that the question presents a largely anachronistic hypothetical that can't be answered. Further, your question lacks foundation because you haven't first established that any false/forged documents have been presented.

An objection to a question that is improperly framed is usually sustained.

However, if you have no legal proof of Obama's parentage or place of birth beyond hearsay, you really have no basis upon which to decide his citizenship in the United States.

His mother states that President Obama was born in Hawaii. Since she (clearly) was a first-hand witness to that birth, that evidence is not hearsay.

But this blog has been primarily about the contention that "natural born citizen" requires two citizen parents. That's what I'm here to discuss. I have little interest in playing along in the "keep moving the goalpost" game that the "certificate" birthers have demonstrated.; October 13, 2012 at 11:50 AM
cfkerchner said...: A paid internet shill speaks up.
http://www.jimstonefreelance.com/vanilla/discussion/335/a-shill-speaks-up-/p1; October 13, 2012 at 12:07 PM
BrianH said...: @MichaelN

In fact the "aliens" being referred to by Blackstone MUST BY NECESSITY HAVE BEEN SUBJECTS, due by "local ligeance", for if they were not subjects, then their children, even if native-born cannot be "subjects born" and would have been "alien born" by "foreign allegiance"

Let me play out this "alien subject" theory for a bit.

So if a person came from France to stay in England for a spell (I recall Calvin's Case had an example along these lines) that alien (so called) was deemed to owe a temporary, local allegiance to the English Crown. But that Frenchman still owed the allegiance due to the French Sovreign by virtue of his French birth and French "citzenship/subjecthood."

Yes, that person -- despite these "dual allegiances" -- still could sire an English "natural born subject" so long as the child was born on English soil. Right?

You keep hammering on that line from Lord Coke that "it's not the soil, but the allegiance" only to have to acknowledge that "dual allegiance" of the father thus doesn't preclude his producing an English "natural born" subject.

At this point, I'm ready to cue up the WKA statement that the "same rule" applied at the time of the foundation of the U.S. Constitution.

It seems "dual allegiance" doesn't prelude a U.S. born child from being thus a "natural born citizen" either.; October 13, 2012 at 4:51 PM
MichaelN said...: Part 1 of 2

BrianH said ....
"Per the U.S. Supreme Court, what "rule" was "the same" as between the common law of England and the common law of America up through the founding of the Constitution and beyond?
Mario? Robert? Michael? Anyone?"

Reply:
Seems like it was, but not how you wish.

You run for cover and typically try to find shelter in the Wong Kim Ark case, desperately mining for any word or piece of grammar that you might seize upon, in the hope it will give credibility to your absurd theory.

But the Wong Kim Ark case does you no good.

Horace Gray - Opinion of the Court Wong Kim Ark case.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html

”The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.”

“The fundamental principle of the common law with regard to English nationality was birth within the allegiance,”

As you can see, Horace Gray also observed and qualified as subjects, those “aliens” (correct term was “alien born”) whose native-born children were “natural born subjects”, pointing out that the native-born children of those who were not subjects, due to no allegiance, could not be “natural born subjects”, because they were as Coke had held, “not born under the ligeance of a subject”, as Gray had priory pointed-out in his opinion that it was the “fundamental principle of the common law with regard to English nationality” which was “predicable of aliens in amity so long as they were within the kingdom”; October 13, 2012 at 6:23 PM
MichaelN said...: Part 2 of 2

In other words, what Horace Gray was saying was that aliens in amity were subjects, and their native born children were natural born subjects, because those children were born under the ligeance of a subject, and further that those native-born children who were not natural born subjects, were such because they were NOT born under the ligeance of a subject.

“, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.”

In passing, it is irrelevant as to how or why the alien born father was or was not a subject.

Contrary to your pathetic and EPIC FAILURE, when you smugly thought you were so right, Gray also agreed with the ONE SITUATION, as regards ligeance of a subject and protection of the king.

” Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem”

Gray virtually points out that the “aliens”, whose native-born children were “natural born subjects”, were in fact subjects.

The “fundamental principles with regard to English nationality” was....
”and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects..”

Ergo: an alien born, visiting in amity was as one with all other subjects of England as regards ligeance and obedience.... the i.e.alien born was a subject

Still there was nothing in 17th century ECL or Wong Kim Ark that held that an English “natural born subject” was one born of a non-subject, or that a US “natural born Citizen” was one born of a non-citizen.

Oh, and after all the citations and references to ECL, Wong Kim Ark was only held to be a “citizen of the United States” under the 14th Amendment, and NOT a “natural born Citizen”.

Why do you suppose that was?; October 13, 2012 at 6:23 PM
BrianH said...: @MichaelN

Brian: Per the U.S. Supreme Court, what "rule" was "the same" as between the common law of England and the common law of America up through the founding of the Constitution and beyond?
Mario? Robert? Michael? Anyone?"

Michael: Seems like it was, but not how you wish.

"Seems like?" The U.S. Supreme Court described the rule as being "the same" as between the ECL and ACL.

So the question still remains pending? What "rule" was that?

Here are the Court's statements again. This time I'll provide a little hint:

"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."

OK. Here's the hint. The "rule" that the Court describes as being "the same" as between the ECL and the ACL which prevailed at the time our Constituttion was established is to be found in the sentence right before!

It's the rule by which the children born on the soil of the sovereign -- even to alien parents (in amity) -- were considered "natural born." The Court indicates in direct, clear terms that such is the "same rule" bot both in England and in the U.S.

Well, gosh. I guess I gave more than just a hint. I actually answered the question.

Oh, and after all the citations and references to ECL, Wong Kim Ark was only held to be a “citizen of the United States” under the 14th Amendment, and NOT a “natural born Citizen”.

Actually, in the portion of the opinion I just quoted, the Supreme Court describes every U.S.-born person of alien parents (in amity) as being "natural born." That includes Mr. Wong.; October 13, 2012 at 9:15 PM
Mario Apuzzo, Esq. said...: BrianH,

U.S. v. Wong Kim Ark explained that Justice Joseph Story, in Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830), referring to Calvin's Case, Blackstone's Commentaries, and Doe v. Jones, said:

“Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be [p660] subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.

3 Pet. 155. "The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens." 3 Pet. 156.

“Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.”
3 Pet. 164.

United States v. Wong Kim Ark, 169 U.S. 649, 659-60 (1898).

So, Justice Story explained that “Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is.” Thus, it follows from what Justice Story explained that any “alien” who was in the King’s dominion and who owed allegiance and obedience to the King, had to be a “subject,” for only a “subject” owed the King allegiance and obedience. And since any person located in the King’s dominion, even if an alien, with the foreign ambassador and military invader exceptions, was a “subject” and therefore owed the King that allegiance and obedience, his children, born in the King’s dominion, were “natural-born subjects” of the King. So, yes, indeed, these persons to whom Justice Story and Justice Gray referred, giving birth to children in the King’s dominion, were “aliens,” but also de facto “subjects,” which made them “alien subjects.”; October 13, 2012 at 10:39 PM
MichaelN said...: Lord Coke (Calvin's case)

"....and so in case of an alien born, you must of necessity have two several ligeances"

Ergo: Dual allegiance at birth = alien-born.

@ BrianH.

With reference to the above quote, do you suppose that Coke was speaking of a native-born child?; October 14, 2012 at 12:22 AM
MichaelN said...: BrianH said .....

"Actually, in the portion of the opinion I just quoted, the Supreme Court describes every U.S.-born person of alien parents (in amity) as being "natural born." That includes Mr. Wong."

The "alien parents" in ECL had to be subjects, for their child to be born under the ligeance of a subject and under the protection of the king (i.e. ONE situation), if the alien born father was not a subject, then the native born child was an alien born by foreign allegiance, because as Lord Coke said (straight from the horse's mouth) he was "not born under the ligeance of a subject".

Here's what BrianH just quoted and is referring to ....

""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."

Actually this part ....

"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,"

...... is referring to those alien born who were subjects of the English sovereign, which would be, according to Mr Gaston, the equivalent to US citizens.

" 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."

Therefore, "every child born in US, of alien born and naturalized 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."; October 14, 2012 at 4:59 AM
BrianH said...: @MarioA

So, yes, indeed, these persons to whom Justice Story and Justice Gray referred, giving birth to children in the King’s dominion, were “aliens,” but also de facto “subjects,” which made them “alien subjects.”

And, as noted many times now, Justice Gray describes the "same rule" as having operated for 300 years in England and also in American from colonial days and "continued to prevail under the Constitution as originally established."

So you still haven't articulated what that "rule" was. Are you saying that the U.S. had "alien subjects?" What was "the same" as between the ECL and ACL here?

You're an attorney. You ought to be able to explain what the court opinion is saying here, and explain it in a direct way (e.g., the "rule" that is described as "the same" is _________") After many rounds of silence, what you're now doing is picking out other portions of the opinion and talking about those. Now try to tie those passages back to explain precisely what J. Gray means by the same rule.

I can answer that directly. By the "same rule" Justice Gray means that under both the ECL and ACL, all persons born on the soil to aliens in amity were born under the jurisdiction and within the allegiance of the sovereign and therefore were "natural born."

There you have an answer that actually explains the "sameness."

You and Michael both dance around having to describe anything that's "the same" because clearly to answer that question directly pretty much shoots down your "two parent" nonsense theory.

In noting that every child born in England to alien parents in amity was "natural born" and saying the same rule was true in the U.S. under the Constitution, the Supreme Court majority is saying thus that every child born in the U.S. to alien parents is also "natural born." Chief Justice Fuller writing in dissent recognized this, complaining the majority opinion thus rendered someone like Mr. Wong presidential eligible. And every court that has addressed the "two citizen parent" argument as to President Obama has recognized this.

I'm just pointing out why this is SO clear in the WKA opinion that no court is ever going to miss it.; October 14, 2012 at 2:13 PM
BrianH said...: @MichaelN

With reference to the above quote, do you suppose that Coke was speaking of a native-born child?

"Alien born" referred both to children born outside of the English realm and children born within England to diplomats or invaders. The phrase "alien born" would only refer to someone born within England in the latter case. (And in that case, I doubt Coke or anyone would apply the term 'native born.')

But let me go back to point I made a few posts back.

Take the case of a Frenchman coming for a time to England and siring a child born in England. At his birth, how many "allegiances" does that child owe? Just one (to the English crown)? Or two (both to the Crown and to France, the country of his father?) And how do you explain your answer?; October 14, 2012 at 2:20 PM
BrianH said...: @MichaelN

The "alien parents" in ECL had to be subjects

Except that Justice Gray in the passage I quoted says absolutely nothing about the alien parents having to be subjects.

Actually this part ....

***
...... is referring to those alien born who were subjects of the English sovereign, which would be, according to Mr Gaston, the equivalent to US citizens.

Except that Justice Gray in saying the "same rule" applied doesn't use the word "citizen" as to the parents, either in that passage or in any of the supporting authorities he cites in that Part III. They all speak either of "alien" parents or generally about birth within the territory without making any point about parent status.

Michael, you are too funny. I put this direct passage before you: "therefore every child born in England of alien parents was a natural born subject." But the pairing of "alien parent" and "natural born" clearly makes you uncomfortable. So you have to put this into the "Spin Machine" and first try to change "alien parent" to REALLY MEAN "subject." But that still doesn't quite get you where you wish to go, so in goes Justice Gray's passage to the Spin Machine for one more cycle to then change "subject" to "citizen," so VOILA! a passage that speaks of a child of alien parents being 'natural born' comes out all washed and reformulated as being about a child of 'citizen parents' being natural born.

So in the end, rather than having Justice Gray be making a point about a child of alien parents (which is what Mr. Wong was) you twist and turn this into utter nonsense where Gray is REALLY making a point about the child of citizen parents (which wasn't the question before the Court).

Michael, your arguments are so patently inane.

In my reading, Justice Gray is making a point about the birth status of the chidren of alien parents -- not citizen parents -- because that's what the case was about!! So just as in England the child of alien parents in amity was a natural born subject, the "same rule" means in the U.S., the child of alien parents in amity is a natural born citizen.

Read Chief Justice Fuller's dissent. He can see this this is what Gray and the majority said; even if you can't.; October 14, 2012 at 3:02 PM
Robert said...: BrianH,

As you well know, not all armies or enemies of a state carry weapons. Some just enter or come from within the society and spread misinformation and try to plant destructive seeds of treason. See Cicero.

If you can equate a citizen with a subject, I can equate a government sponsored exchange student with a diplomatic agent. We fought a war so that we wouldn't be subjects any more.

The overwhelming evidence is that Mr. Obama is not a natural born citizen.

Your disagreement with this fact, even with the very scholarly Latin quote, doesn't hold up. You haven't shown any evidence that legally establishes where Mr. Obama was born or who his parents are. Neither have you shown any evidence that a natural born "citizen" is anyone but one born in the country to "citizen" parents.

Regarding my question about the presentation of forged/false documents in a quo warranto proceeding: It has clearly been established by several highly respected document examiners, a US Sheriff, and the State of Israel that the Obama documents are forgeries. Their research can be easily confirmed by every interested person with a computer. That you choose to ignore their findings is not their fault. In any case, why can't you just answer the question?

You claim that Obama's mother states that her son was born in Hawaii. Well, his Grandmother clearly stated that she attended his birth in Kenya. And Obama, as an adult, told his publicist that he was born in Kenya. The Kenyan government has recognized his birth in Kenya and has established his birth place as a national shrine. Also, the only birth document for Obama that has not been thoroughly vetted - we don't know if it's true or false - is from Kenya.

Regarding claims of a Hawaiian birth: Since the State of Hawaii, who at first refused to certify Obama, won't supply a simple, official birth certificate that until Obama has been easily available to every other natural born citizen of Hawaii, these contradictions warrant serious investigation. If Hawaii can't come up with an original document, maybe they can come up with a note from Obama's mommy.

Yes, this blog is about Obama's eligibility. I'm not moving any goalposts. I'm just asking very relevant questions that you don't want to answer. Any discussion of citizenship based on place of birth and/or parentage relies totally on the firm establishment of those facts.

The foundation of your argument is based on contested hearsay and false documents. Until you can clear this up, the rest of your arguments are meaningless. And, from what we can all see, they are being hit out of the park by Mario, cfkerchner, MichaelN, et al.; October 14, 2012 at 4:46 PM
MichaelN said...: I would like to clarify ....

In my prior post, this was my revised version, with "US" & "born and naturalized" inserted to show what was ACTUALLY being said by Gray, and applying it to a US situation, in light of the fact that an alien (aka "alien born") visitor in amity in England was actually a subject, then it would require an alien born in the US situation, to be naturalized, to be equivalent to the English situation.....

My version for the US situation ....
Therefore, "every child born in US, of alien born and naturalized 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."

Here is Horace Gray's wording verbatim in the English situation .....

"therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born."

The following actually meaning, unless not a 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"

Lord Coke put it quite plain and clear,.....

"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"

Like a "Chinese whisper", things get changed sufficient for the antagonists to the true meaning and intention of Article II of the US Constitution to seize upon ANY piece of grammar or a word to connivingly use as an instrument in their endeavor to revise the US Constitution by stealth and deception.

"Chinese whispers[1] is one name for a game played around the world, in which one person whispers a message to another, which is passed through a line of people until the last player announces the message to the entire group. Errors typically accumulate in the retellings, so the statement announced by the last player differs significantly, and often amusingly, from the one uttered by the first. Some players also deliberately alter what is being said in order to guarantee a changed message by the end of it."

The simple truth is that in 17th century English common law, it was ESSENTIAL for a native-born child in England, to be a "subject born" (aka "natural born subject"), the child MUST BY NECESSITY be born "under the ligeance of a SUBJECT.

Therefore, if Justice Horace Gray and those authorities who he cited in the Wong Kim Ark case, were correct, with respect to the English common law being followed in the US in the framing period and thereafter, then it follows that for a native-born child in US to be a US "natural born Citizen", the child MUST BY NECESSITY be "born under the ligeance" of a US citizen.

Quod erat demonstrandum.; October 14, 2012 at 4:51 PM
Mario Apuzzo, Esq. said...: I of IV

BrianH,

You are not able to respond to MichaelN’s and my position that under the English common law, one had to be a “subject” of the King in order to give birth to a child born in his dominion who was accepted as a “natural-born subject.” So, you go off and look for solace in Wong Kim Ark and Justice Gray’s reference to some “same rule” existing between the English common law and American common law. You argue that you have this debate won because Wong Kim Ark 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.

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.”

United States v. Wong Kim Ark, 169 U.S. 649, 658 (1898).

You conclude that since Wong Kim Ark said that the “same rule” that existed under English common law also existed under the Constitution, the Founders and Framers used as their definition of a “natural born Citizen” under American “common law” the same definition that the English used to define a “natural born subject” under the English common law. A careful analysis of our history and U.S. case law reveals that your argument is meritless.

First, I see that after my many years of my arguing that there was such a thing as American common law and not only English common law, you have finally conceded that such a thing existed. But the only reason that you make such a concession is that you are too embarrassed to argue that the Founders and Framers defined a “natural born Citizen” under English common law rather than under American common law. So now you argue that there was American common law that defined a “natural born Citizen,” but that it provided the “same rule” as the English common law. Apart from what Justice Gray concocted in Wong Kim Ark, there is no historical evidence or U.S. Supreme Court case law to support your theory.

Second, this quote by Justice Gray regarding the English common law speaks about a “natural born subject.” But there is no such clause in Article II, Section 1, Clause 5. Rather, this constitutional provision speaks about a “natural born Citizen.” The Founders and Framers were meticulous and ever so careful in their word choices when writing the Constitution. Every word they chose (not words they did not choose) must be given proper meaning. Hence, the question becomes what is a “natural born Citizen,” not what is a “natural born subject.” These Obama supporters realize that the English common law did not speak about a “natural born Citizen” and that Justice Gray in Wong Kim Ark, when reviewing the English common law, also spoke about “natural born subjects” and not “natural born Citizens.” They attempt to hide this weakness of their argument by using in their discourse only a truncated part of “natural born Citizen,” i.e., “natural born,” so that it looks like when the English common law or Justice Gray was referring to “natural born subjects,” they were referring to “natural born Citizens.”

Continued . . .; October 14, 2012 at 8:21 PM
Mario Apuzzo, Esq. said...: II of IV

Third, the “single question” before the Wong Kim Ark Court was whether Wong, born in the United States to alien parents, was a “citizen of the United States” under the Fourteenth Amendment, not whether he was a “natural born Citizen” under Article II. This “single question” required the Court to answer the question left open by Minor which was whether such a person was a “citizen of the United States” under the Fourteenth Amendment, not whether he was a “natural born Citizen” under Article II, which Minor had already defined under the American “common-law” definition with which the Framers were familiar when they drafted the Constitution. Hence, any statement which Wong Kim Ark made which can be correctly or wrongly interpreted as providing a definition of a “natural born Citizen” is obiter dictum.

Fourth, Justice Gray does not provide any evidence that the Founders and Framers adopted any such “same rule” as part of the Constitution or in any other capacity on the national level. The historical record is replete with evidence that the Founders and Framers rejected the English common law and its broad-based allegiance as having any application in the Constitution or otherwise on the national level. If any thing and at most, such “same rule” may have continued to prevail in the States which adopted English common law for many local purposes including defining state citizenship and only until abrogated by state statute. But no such “same rule” became part of the Constitution or adopted on the national level for purposes of defining the new national citizenship as distinguished from state citizenship.

Fifth, Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 120 (1830) and Shanks v. Dupont, 28 U.S. 242, 245 (1830) demonstrated that the Founders and Framers rejected the English common law and its broad allegiance as having any application to define the nation’s new national citizenship. Congress, when passing the naturalization acts, also rejected the English common law’s broad-based allegiance (see below). As we have seen above, an alien in amity present in the King’s dominion was considered a “subject” of the King, owing him allegiance and obedience and the King in return owing him protection. But in the United States, no alien became a “citizen” by the mere fact of just being present on its territory. Rather, the alien had to satisfy Congress’s naturalization laws, which included a period of U.S. residency and the taking of an oath with included the renunciation of all foreign allegiance and acceptance of allegiance only to the United States. So, apart that “subjects” were members of monarchial and feudal societies and “citizens” were members of republics, surely a “subject” was not the same as a “citizen” who had to take and satisfy a number of legally prescribed steps in order to have gained that status in the United States.

Sixth, any such “same rule” that may have continued to prevail in the states was abrogated when Congress passed the Naturalization Act of 1790, which through a process of elimination confirmed that the Founders and Framers defined an Article II “natural born Citizen” as a child born in the country or out of it to parents who were “citizens” of the country at the time of the child’s birth, which in the 1795 Naturalization Act and those that followed in 1802 and 1855 confirmed that such status would be granted only to those children born in the United States to “citizen” parents. These acts all treated children born in the United States to alien parents as aliens themselves and not as “citizens of the United States,” let alone as “natural born Citizens” or as you contend under English common law, as “natural born subjects.” Congress in these acts gave membership in the United States from the moment of birth which it called “citizen of the United States” only to those children born to “citizen” parents.

Continued . . .; October 14, 2012 at 8:23 PM
Mario Apuzzo, Esq. said...: III of IV

Since these were naturalization acts, the children that Congress covered were only those who were born out of the United States to “citizen” parents, declaring them to be “citizens of the United States” from the moment of birth. Congress allowed those children who were born to aliens parents, whether born in the United States or out of it, to become “citizens of the United States,” but only after birth. Under this legislative scheme, those given the status of “citizen of the United States” from the moment of birth were naturalized at birth and those who were given that status after birth were naturalized after birth. The only children Congress did not reach with its naturalization power were those born in the United States to “citizen” parents, for these were the “natural born Citizens” who did not need any naturalization act to be so declared, but rather were confirmed to be such under American “common-law” as the unanimous U.S. Supreme Court explained in Minor v. Happersett (1875).

Seventh, neither Justice Gray nor you come to grips with what Minor held was the “common-law” with which the Framers were familiar when they drafted the Constitution and which specifically defined a “natural-born citizen.” Minor held:

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

Minor v. Happersett, 88 U.S. 162, 167-68 (1875).

Continued . . .; October 14, 2012 at 8:24 PM
Mario Apuzzo, Esq. said...: IV of IV

Neither Justice Gray nor you address how this “common-law” definition of a “natural-born citizen” with which the Framers were familiar when they drafted the Constitution, as confirmed by the unanimous U.S. Supreme Court in Minor, could exist, one that called for birth in a country to parents who were “citizens” of that country at the time of the child’s birth, when the English common law did not limit that, in order for a child born in the King’s dominion to be a “natural-born subject,” he had to be born to parents who at the time of his birth were either “natural born subjects” or “naturalized subjects.” Rather, the English common law with its notion of broad allegiance included as qualifying parents all aliens in amity who were present in the King’s dominion. That law considered those aliens to be “subjects” of the King and thereby owing him allegiance and obedience, all without the alien having to go through any naturalization process to become a “subject.” But Minor even added that “there have been doubts” whether a child “born within the jurisdiction” to alien parents was even a “citizen.” If our nation since before the revolution and thereafter and even under the Constitution treated aliens in amity the same as the English treated theirs, the Supreme Court would not have stated that “there have been doubts” whether such a child was even a “citizen.” With such statements by the unanimous U.S. Supreme Court, there simply could not have prevailed in the United States the “same rule” that existed under the English common law that defined a “natural born subject.” On the contrary, Justice Gray approvingly cited and quoted Minor and its definition of a “natural-born citizen,” and did not take issue with that definition or with Minor’s “doubts” regarding whether children born in the United States to alien parents were even just “citizens.” Finally, what Chief Justice Fuller said in his dissent about Wong being able to be eligible to be President does not only not find any support in the majority’s holding, but is also a mere statement of obiter dictum.

Hence, BrianH, you will have to come up with evidence other than Wong Kim Ark’s “same rule” statement of dicta to convincingly prove that the Founders and Framers defined a “natural born Citizen” the same as the English defined a “natural-born subject” under English common law.; October 14, 2012 at 8:25 PM
BrianH said...: @Robert

If you can equate a citizen with a subject, I can equate a government sponsored exchange student with a diplomatic agent.

Except that I have several judicial cases to cite as precedent saying that "citizen" and "subject" -- at least insofar as the issue of birth status goes -- are interchangeable terms. Do you have a case or other authority to indicate that an exchange student can be equated with a diplomatic agent? If not, then all you offer is your own silliness as authority.

The overwhelming evidence is that Mr. Obama is not a natural born citizen.

To the contrary, the overwhelming evidence is that he is.

Your disagreement with this fact, even with the very scholarly Latin quote, doesn't hold up.

Do you understand what the Latin indicates? Basically, if you can make claims without evidence or substantiation, then all I need to do is claim the opposite without any more.

You haven't shown any evidence that legally establishes where Mr. Obama was born or who his parents are.

Nor have I tried. It's not the issue I came here to discuss.

Neither have you shown any evidence that a natural born "citizen" is anyone but one born in the country to "citizen" parents.

I've shown from a U.S. Supreme Court case where that is the case. The same Supreme Court case that has been cited by about every lower court that considering the "citizen parent" argument. That's the very definition of "sufficient evidence."

Regarding my question about the presentation of forged/false documents in a quo warranto proceeding: It has clearly been established by several highly respected document examiners, a US Sheriff, and the State of Israel that the Obama documents are forgeries.

And their claims have been debunked by many others. The Arpaio investigation is a national joke.

That you choose to ignore their findings is not their fault.

I've seen the counter-evidence, I find that evidence more convincing.

In any case, why can't you just answer the question?

Because I can't go back in time and decipher what Lord Coke and Blackstone would have thought about .pdf layers on electronic documents. Neither can you.

If you want to argue the issue of the Hawaiian birth, why not go over to John Woodman's blog, or NBC's, or the Fogbow. That issue gets discussed more there than here. They will keep you occupied, I'm sure.

Yes, this blog is about Obama's eligibility. I'm not moving any goalposts.

You have already. You first claimed that there was no evidence that wasn't hearsay. So I gave you an example of Obama's mother. So next time you ask for something else. Goalpost moved. I'm not playing that game.

The foundation of your argument is based on contested hearsay and false documents.

The State of Hawaii has now twice verified that the information contained on the White House LFBC matches the information on the original record(s). That is sufficient. I don't care about the silly conspiracy theories positing a string of evidence pointing to an Hawaiian birth was somehow all concocted or altered after the fact.

Until you can clear this up, the rest of your arguments are meaningless. And, from what we can all see, they are being hit out of the park by Mario, cfkerchner, MichaelN, et al.

In this Through the Looking Glass world here, no doubt some bad whiffs or foul tips going backwards look to you like shots out of the park. And your confusion is further shown by your using a baseball metaphor at the same time you're standing up to play Head Cheerleader. Baseball doesn't have those.; October 14, 2012 at 10:42 PM
James said...: SPREAD THIS FAR AND WIDE!! THIS MUST GO VIRAL!!!
MARK YOUR MONEY BILLS TODAY!!! We have 3 weeks to mark as many money bills as we can get our hands on. Every time you buy something with your cash, you are sending the message across the country on our money - NO to Obama on 11/06/2012 and YES to Romney on 11/06/2012. Do Not Delay! Please mark your money bills.; October 14, 2012 at 11:49 PM
BrianH said...: @MarioA

You are not able to respond to MichaelN’s and my position that under the English common law, one had to be a “subject” of the King in order to give birth to a child born in his dominion who was accepted as a “natural-born subject.”

Your position isn't backed up by any case or commentator saying "one has to be a 'subject' to give birth to someone who is a natural born subject." To the contrary, Blackstone and other commentators -- most significantly the U.S. Supreme Court -- phrase it as being the case that the English-born children of "aliens" are natural born subjects.

So what we have here is a situation where how you describe the ECL/ACL comparison ISN'T how the U.S. Supreme Court describes it. The Supreme Court describes both as employing the "same rule." Your position is that there were fundamental differences. Or there's Michael's response which is to keep playing and twisting the wording. Where Justice Gray speaks of a "same rule" which applies to "children of alien parents," Michael claims Gray is REALLY talking about "chidren of citizen parents," a result which then would have no applicability to Mr. Wong. An obviously desperate argument.

Pointing these things out is all I need to demonstrate that your positions are pretty darn weak.

I see after I put the question to you multiple times to describe what the "same rule" is that Justice Gray refers to, and after you avoided answering many times, you've now opted for one of your patented "put up a four-part post and hope that something sticks" responses.

You conclude that since Wong Kim Ark said that the “same rule” that existed under English common law also existed under the Constitution, the Founders and Framers used as their definition of a “natural born Citizen” under American “common law” the same definition that the English used to define a “natural born subject” under the English common law.

Yes. There is simply no other way to read "the same rule . . continued to prevail under the Constitution as originally established."

A careful analysis of our history and U.S. case law reveals that your argument is meritless.

But it's not "my" argument. It's the Supreme Court analysis that you're objecting to. So most of your six points following in your 4-part post is already answered by Judge Stansfield:

"While Ms. Fair and Ms. Miltenberger [and Mr. Apuzzo] may disagree with the holding of the Supreme Court, from a perspective of stare decises, the only means by which an opinion of the Supreme Court, concerning substantative law can be overturned is either by a subsequent holding of the Supreme Court or an amendment to the U.S. Constitution."

You may think that the WKA majority didn't state the ECL correctly that "every child of alien parents was natural born" or that it didn't support its statement that the "same rule" held true under our original constitution. But the Court said those things, so every lower court is going to accept that. And the proof is in the pudding already. If you want to talk about "coming to grips" with reality, start there.; October 15, 2012 at 12:11 AM
Mario Apuzzo, Esq. said...: BrianH,

So I see you have no substantive response to my 4-part comment. You just simply point Wong Kim Ark and blame it all on Justice Gray.

That is not a way to win any debate.

It looks like reality is stacked against you, not with you. But then that does not mean that there are not those like you who also deny that reality.; October 15, 2012 at 1:49 AM
MichaelN said...: BrianH said/quoted ....

"You may think that the WKA majority didn't state the ECL correctly that "every child of alien parents was natural born".

"natural born subject" or "subject born" are the proper and correct terms of art.

"natural born" is not the correct term of art.

Furthermore not "every child" native-born born to alien fathers were "natural born", "subject born", "natural born subjects" or "subjects", only some were, depending on the alein father being a subject by local allegiance.

17th century ECL held that only the native born children of the aliens who were subjects were "subjects born", aka "natural born subjects".

It is simply not true that "every child of alien parents was natural born", or a natural born subject.

The native-born child of the alien who was not a subject, was no a subject at all and was in fact alien born, by foreign allegiance, i.e. "not born under the ligeance of a subject".

This is straight from the very source that Horace Gray and Blackstone relied on when they casually put this principle generalized, into their own words.

You are a willing victim of the "Chinese whisper".

THE MEANING OF WHAT LORD COKE CLEARLY SAID HAS NOT CHANGED merely because some people have re-phrased what Coke said.

It is a irrefutable and proven FACT that a native-born child in 17th century England, who is born to an alien father who is not a subject, cannot be a subject, because the child was "not born under the ligeance of a subject".

You have already recognized acknowledged in the positive the fact proven that "not born under the ligeance of a subject" renders a native-born child, NOT a subject.

Then you tried to make the absurd and ridiculous argument that there was a different "situation" where the "protection of the King" could make a "subject born", at which time you were smacked-down by the truth.

Now you are running around desperately arking all over again, mining for words, grammatical errors different versions of the same theme that might be screwed-over to suit your devious agenda.

PROVEN FACT: 17th century ECL REQUIRED an alien to be a subject, for his native-born child to be a "subject born".

If you think or if indeed Horace Gray or anyone else, said otherwise, then you and/or they have GOT IT WRONG!

IF the framers did follow the ECL principle for what makes a "natural born subject", then for a US native-born child to an alien father, to be a "natural born Citizen", the alien father would have to be a US citizen, so the child could be "born under the ligeance" of a US citizen.

NOWHERE in 17th century ECL is it held that a native-born child of an alien father who is not a subject, can be a "subject born" or a "natural born subject".

To say that in ECL "every child of alien parents was a natural born" is a complete and utter LIE!; October 15, 2012 at 3:32 AM
BrianH said...: @MarioA

So I see you have no substantive response to my 4-part comment.

They repeat things I've already slapped down.

Your first point about my "now" accepting "american common law" shows how desperate you are for a point you can claim a "win." But back in July, I pounded you over and over with the following excerpt from WKA:

"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 there is an "american common law" in the sense of a national law as to constitutional interpretation. So there's nothing here I've "finally conceded." Swing and a big miss.

As to your second point about there being no "NBS" language in Article II, the REALITY here is that the Court states the Constitution is to be understood according to the history of the ECL. Our Constitution has the language "natural born." The ECL has the language of "natural born." So in Section II of the opinion the Court analyzes the meaning of "natural born" in the context of children of alien parents. The Court then later cites to several authorities for the proposition that "subject" and "citizen" were in this context interchangeable terms.

So the Court was quite able to analyze "NBC" by looking to the "NBS" language in the ECL.

Your third point that this is obiter dictum is incorrect. The Court is analyzing the meaning of "born . . . in the U.S., and subject to the jurisdiction thereof" under the 14A. To that end, it analyzes how under the ECL children of aliens were 'natural born' except in the two noted cases (Part II). In Part III it analyzes how that same rule prevailed under the original Constitution. And then in Part V it concludes that that same principle was incorporated into the 14A's "born and subject to" language.

So, yes, the Court's analysis of the ECL and ACL rules ties in directly to the meaning it ascribes to the 14th amendment. It is all thus part of the ratio decidendi of the case.

Your fourth point I addressed last night. Go argue to the SCOTUS they need to change Gray's opinion. Until then, you're stuck with it as every lower court will follow what he said.

Your fifth point about this supposed 'rejection' of the ECL is just silly in the face of the SCOTUS saying explicitly the language of the Constitution derives in many parts from the language of the ECL.

Your sixth point misses the mark as the naturalization acts didn't even speak to the case of native-born children, no doubt the reason the WKA Court didn't mention them as relevant to as it analyzed in depth the situation of a native-born person.

Your seventh point is again your misplaced reliance on Minor, a case that didn't present the question of the birth status of a child born of alien parents. So the case is largely irrelevant when the situation of a native-born child of alien parents is being discussed.

But I don't have an interest in this endless cycle of you regurgitating your same lame arguments which I then slap down. So I'm in wrap-up mode here.; October 15, 2012 at 11:40 AM
BrianH said...: @MichaelN

To say that in ECL "every child of alien parents was a natural born" is a complete and utter LIE!

Just about every time I've recited that rule I've then added the exceptions for children of hostile invaders and foreign diplomats. Is your attention span so short that I need to repeat the exceptions EVERY time or else you get confused?

But there's a question pending:

Take the case of a Frenchman coming for a time to England and siring a child born in England. At his birth, how many "allegiances" does that child owe? Just one (to the English crown)? Or two (both to the Crown and to France, the country of his father?) And how do you explain your answer?

I don't plan to be here much longer. I'm sure you want to provide your answer and demonstrate your keep insight into the ECL before I go.; October 15, 2012 at 11:46 AM
MichaelN said...: @ BrianH.

What was the common law referred to by the SCOTUS in Minor V Happersett, which gave the SCOTUS cause to
1) INTRODUCE (not brought by the contending parties)the FACT that there were DOUBTS whether native-birth in US, to alien parents could make a "citizen of the United States", then
2) GIVE MERIT to the doubts, by stating the doubts had yet to be solved?

All this in the same passage, where the SCOTUS had just stated that native-birth to US citizen parents made a US "natural born Citizen".

This was of course "the same rule" that Justice Horace Gray was referring to, was it not?

Whilst you are at it, tell me again about the "disjunctive"
" and the "nor", "separate condition" stuff again, that you were so WRONG about, and then got SMACKED DOWN with the truth of the matter and went all quiet, not even man enough to admit you were WRONG ....... I could use a good laugh.

Oh, and why are you AFRAID to use your real name, back-up what you say and put your real reputation on the line?; October 15, 2012 at 4:01 PM
MichaelN said...: @ BrianH.

Justice Horace Gray in his 'Opinion of the Court" in the Wong Kim Ark case summarizes and concluded, after all the rambling on about the ECL as follows.....

"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, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States."

Gray had his big fat chance, right there, and if he had thought for even one moment that a native-born child "born within the sovereignty of the United States, whether children of citizens or of foreigners" was a US "natural born Citizen" he WOULD HAVE SAID IT RIGHT THERE...... but he DIDN'T!

Even after all the careful preceeding wording, with particular attention to the definitions, etc, Gray must have DELIBERATELY CHOSEN the words "NATIVE-BORN citizens of the United States", thus he deliberately chose NOT TO USE and AVOIDED applying the Constitutional word of art, i.e. "natural born Citizen".

Why do you suppose that was BrianH?

As a result of the long-winded case, Wong Kim Ark was correctly affirmed by the SCOTUS to be a "citizen of the United States" because he was NOT considered by Justice Horace Gray as a US "natural born Citizen" , but rather a "NATIVE-BORN citizen of the United States".

Seems like Justice Horace Gray must have read Lord Coke's report of Calvin's case properly and understood Coke correctly; even though he didn't say it verbatim, he still went with Coke on this.......

Lord 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 of a subject, nor under the protection of the King."

and this (when referring to the native-born)...

"in case of an alien born, you must of necessity have two several ligeances"

and this (translated from the Latin) ...

"[Ed: An alien born is of foreign birth or foreign allegiance, .... ]

WHALLOP! ......... smacked-down again BrianH...... back to school for you.; October 15, 2012 at 4:42 PM
MichaelN said...: @ BrianH.

You have not slapped down anything.

You are still as self deluded as ever.

YOU and your absurd, ridiculous arguments have been slapped down repeatedly, now that you have no more rabbits to pull out of your hat, you are in "wrap-up mode" ............. how convenient........ run away and hide like you do so well.

In fact you are already cowardly hiding, afraid to put your real name up.

But if you must go hide elsewhere, then time to say bye bye, it's been nice to smack-down your ridiculous and absurd nonsense, and show how WRONG you are e.g. "disjunctive", "nor", "two situations" LOL what a joke!

Go back to Arking school.; October 15, 2012 at 5:04 PM
Robert said...: BrianH,
The simple fact is that Obama is not eligible. Regardless of your arguments about how the English consider their subjects, Obama is not a natural born citizen according to our laws which are derived from the Laws of Nature and the Law of Nations.

A natural born citizen is one who is born in the country to citizen parents. This was clearly recognized by our founding fathers who sought for a means of limiting those who could become President and Commander in Chief with the intent of avoiding all foreign allegiances.

The proof of this is not only in the records of communications we have among the founders and in our legal history, but in that all of our Presidents who were NOT grandfathered have met this criteria with the exceptions of Barack Obama and Chester Arthur who, like Obama, lied about his history and hid his records.

In spite of your willful ignorance and ridicule, Obama has never presented any legitimate documents to qualify for the office he now usurps.

The experts you dismiss in favor of Obama shills have easily proven that Obama's documents are forgeries with methods that are easily duplicated by anyone with a computer. And, even without the benefit of evaluation by highly respected document examiners, the proof that Obama's documents are fraudulent is apparent even with the most superficial novice examination.

Beyond that, the fact that Obama has never presented any of his documents in a court of law where he could be held criminally liable speaks volumes. He has demonstrated that he is so afraid of discovery that he prefers to bully the court and risk being held in contempt rather than just present (or have his lawyer present) the simple documents he claims to have in his possession to prove his citizenship.

The proof is that Hawaii, instead of just honoring their commitment to the Constitution in the most straightforward and simple manner, will only make carefully worded comments about what the documents may or may not contain. Notably, their comments have been contradictory and evasive.

Simply, the proof is in the fact that no one has produced a document that is readily available to every natural born citizen in the country - especially those born in a major hospital such as the three Obama and his family have claimed as his place(s) of birth.

In spite of your excellent and persuasive writing skills, that which you ignore, which is right smack dab in the middle of your face, brings into serious question the reliability and integrity of all of your other research.

The foundation of any argument about natural born citizenship relies on proof of where the person in question was born, his parents, their citizenship, and their relationship to their home country.

You apparently want to skip all of that and ignore any information that doesn't fit your desired conclusion so you can promote your political agenda at any cost to our country.; October 15, 2012 at 7:27 PM
BrianH said...: @MichaelN

What was the common law referred to by the SCOTUS in Minor V Happersett,

This was your pet question back in July. Which I addressed twice (July 5 @7:07 a.m. and July 6 at 12:37 p.m.).

This was of course "the same rule" that Justice Horace Gray was referring to, was it not?

The "same rule" referred to by Justice Gray was the rule he summarized in the immediately preceding sentence:

""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."

Michael, a few posts back I even gave you a "hint" to this effect. Even when I spoon-feed the answer to you like pablum to a babe, you still get it wrong.

Note that Justice Gray calls the parents "aliens." Why do you think he does that, and not call them "alien subjects" or "subjects?" Oh, how about because in the case before him sat Mr. Wong, who was a person born of alien parents, and so the precedents and rules Gray is adducing thus pertain to alien parents. Duh.

Oh, and why are you AFRAID to use your real name, back-up what you say and put your real reputation on the line?

Because I assume that no one cares anymore about who I am than I care about who the rest of you are. The moment you focus this on me, rather than the argument, you're just engaging in ad hominem.

And I've asked you twice now about the situation involving a visitor to England.

"Take the case of a Frenchman coming for a time to England and siring a child born in England. At his birth, how many "allegiances" does that child owe? Just one (to the English crown)? Or two (both to the Crown and to France, the country of his father?) And how do you explain your answer?"

I think this blog ought to add after "A Place to Ask Questions and Get the Right Answers" something like "(Oh, but if the questions are too hard for us to answer, we'll ignore them.)" I had to ask the "same rule" question six times before any semblance of an answer was given by anyone.

So how many allegiances does that child have under the ECL? Is this too hard for you to answer, Michael?; October 15, 2012 at 7:49 PM
BrianH said...: @MichaelN

Even after all the careful preceeding wording, with particular attention to the definitions, etc, Gray must have DELIBERATELY CHOSEN the words "NATIVE-BORN citizens of the United States", thus he deliberately chose NOT TO USE and AVOIDED applying the Constitutional word of art, i.e. "natural born Citizen".

Why do you suppose that was BrianH?

Because as to persons born within the U.S., the terms "native born' and "natural born" are interchangeable. Another example from a Supreme Court justice 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."

And also in Schneider v. Rusk, 377 US 163, 165 (1964):

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" (dissenting opinion).

"Native born" is used in place of the Constitutional term "natural born." Native-born. Natural born. Same thing as to U.S. born persons. Parental citizenship is irrelevant.

Go back to Arking school.

With all the frothing at the mouth you're exhibiting, building an ark might be a good idea.

But before I go, I'll try one more time to have this place live up to it's billing as "a place to ask questions:"

Take the case of a Frenchman coming for a time to England and siring a child born in England. At his birth, how many "allegiances" does that child owe? Just one (to the English crown)? Or two (both to the Crown and to France, the country of his father?) And how do you explain your answer?; October 15, 2012 at 8:56 PM
MichaelN said...: BrianH said ....

"Just about every time I've recited that rule I've then added the exceptions for children of hostile invaders and foreign diplomats. Is your attention span so short that I need to repeat the exceptions EVERY time or else you get confused?"

Well it seems that it might be a good practice to adopt, else people just become victims of the "Chinese whisper" effect; look what happened to YOU, when Blackstone and Horace Gray left out the most crucial and important parts, you prance around the shop in a near state of utopian delirium, ridiculously trumpeting that a native-born in US to alien parents, is a "natural born Citizen" because this is what ECL allegedly says (via Blackstone & Gray) but when one reads the ORIGINAL ECL case cited by the "whisperers" down the line, one finds the TRUTH, i.e.that the "aliens" being referred to by the "whisperers", were actually SUBJECTS and given that the USC should be read in light of the language and history of the ECL, and "subject" and "citizen" were analogous, then it would necessarily require a native-born in US to be born to US citizen parents, to be a US "natural born Citizen.

But you would have people believe the LIE, that the Framers didn't read that part of Lord Coke's report of Calvin's case.

But this is where your sinister agenda and dishonesty kicks-in; the truth is inconvenient to you, so you find some others' variation on the original theme, with wording and grammar which can be worked and screwed-over, to give an appearance of meaning something other than the original.

Go on run away BrianH, like the dishonest coward that you are, afraid to show your real name and take responsibility for your traitorous deceit.

YOU LOSE!; October 15, 2012 at 9:50 PM
Mario Apuzzo, Esq. said...: BrianH,

I have read your responses to my comments. You might think that you have provided some great answers. On the contrary, your answers are repetitive, evasive, and even at times dishonest.
You put forth some watered down version of a “natural born Citizen” just to satisfy your need that Obama be declared a “natural born Citizen” when the historical record is replete with evidence that the Founders and Framers used the “natural born Citizen” clause as a national security and safety provision for the nation.

You have failed to adequately address, among the many points made on this blog, the issue of a “subject” under English common law versus a “citizen” under American common law.

You argue that the early Naturalization Acts did not apply to children born in the United States when both the text of the statutes and the historical record show that they did.

You have the dishonest nerve to argue that Minor is not relevant on the question of citizenship in the United States and that it did not confirm the definition of a “natural-born citizen.”

You do not address the conflicting position on citizenship of the “common-law” recognized in Minor and the “common law” recognized in Wong Kim Ark.

Your position on Minor is so outlandish that you even say that it cannot be used as any precedent with respect to the question of whether a child born in the United States to alien parents is a “natural-born citizen.”

You have failed to convincingly reply to my response to your Justice Gray “same rule” argument. You provide no convincing argument based on logic, reasoning, historical evidence, and case law, but rather just rely on the authority of the Wong Kim Ark decision without adequately demonstrating that its holding supports your argument that Obama is a “natural born Citizen.”

You continue your dishonesty by using “natural born” rather than “natural born Citizen,” knowing that the English common law made no mention of a “natural born Citizen” but rather used “natural born subject” and using the expression “natural born” to hide that fact.

You continue to spin the Wong Kim Ark case, dishonestly proclaiming that the Court held Wong to be a “natural born Citizen” when the holding of the Court demonstrates that it held him to be a “citizen of the United States” under the Fourteenth Amendment which Article II shows is a different class of “citizen” than a “natural born Citizen.”

In short, you have failed to convince me of anything.; October 15, 2012 at 10:09 PM
MichaelN said...: BrianH said ....

"And I've asked you twice now about the situation involving a visitor to England.

"Take the case of a Frenchman coming for a time to England and siring a child born in England. At his birth, how many "allegiances" does that child owe? Just one (to the English crown)? Or two (both to the Crown and to France, the country of his father?) And how do you explain your answer?"

Reply:

You are speaking within the context of ECL .... right?

You persist with not being absolutely clear on what you are saying, and so I need clarity, because you are one who mischievously plays with words to the extent that you attempt to fantastic meanings which were not present in the original clear language.

Based on the benchmark 17th century ECL case relied upon by Blackstone and Horace Gray.

Given the Frenchman was visiting England in amity, his native-born child would be an English natural born subject and therefore not an alien born to England.

The child's status as a natural born subject or subject born would be as a direct result of having been native-born and "born under the ligeance of a subject".

The Frenchman (father) was an alien born, who was an English "natural subject" by local ligeance whilst in England and could be indicted for treason in England, as was the case per Lord Coke's example in Calvin's case.

A native-born child in England, was not a natural born subject or subject born or subject, but was an alien born, when the child was born of an alien born father who was visiting England, but who (the father) was not a subject, and who could not be indicted for treason. e.g. a foreign diplomat, an enemy invader, etc

Now your turn.

For starters....

Admit you were wrong about the "disjunctive" "nor" "TWO SITUATIONS" garbage.

Then explain what "common law" was it that the SCOTUS referred to in the Minor court, that gave the SCOTUS a reason to first introduce the doubts that US native-birth to alien parents (generally)could make a US citizen, and secondly, acknowledge and give merit to the doubts by stating those doubts were yet to be solved (obviously at a SCOTUS level)

And how do you explain your answer?; October 15, 2012 at 10:48 PM
BrianH said...: @Robert

Obama is not a natural born citizen according to our laws which are derived from the Laws of Nature and the Law of Nations.

The claim that the citizenship phrases derive from the "law of nature" is one for which there is ZERO substantiation but which is just assumed to be so by Birthers. By contrast, I can show where our U.S. Supreme Court has stated our Constitutional terms are framed in the language of the English common law and such terms are to be understood in light of the ECL history. (In fact, I just posted that above; you can read it right there.)

The experts you dismiss in favor of Obama shills ...

See, Robert, here is a perfect example of why I'm not inclined to this discussion. Every person you wish to hold up for support is a "world class expert." Anyone that is offered potentially in opposition is dismissed as an "Obama shill."

. . . have easily proven that Obama's documents are forgeries

How can a document be a 'forgery' when the information has been verified as accurate? The supposed 'evidence of alteration' have been explained cogently as the result of algorthymic functions within the software program(s) used. Or, if that doesn't explain everything, they 'anomalies' are consistent with someone making parts more legible or redacting information that is private.

What there ISN'T is any proof at all of information being changed. And Hawaii has verified as accurate the one essential piece of information: place of birth. Any talk of 'forged' documents is thus precluded.

The proof is that Hawaii . . . will only make carefully worded comments about what the documents may or may not contain.

Like "The information contained in the 'Certificate of Live Birth' published [by the White House] . . . matches the information contained in the original Certificate of Live Birth for Barack Hussein Obama, II on file with the State of Hawaii Department of Health."

So the White House COLB indicated a birth place in Hawaii. Hawaii has verified that information matches their original record. But I'm supposed to conclude that there has been 'no evidence' to support an Hawaiian birthplace for Obama.

OhhhhhhhKayyyyyyeeeee.

The 'forgery' claim is hogwash.

In spite of your excellent and persuasive writing skills,

Well, thank you.

that which you ignore, which is right smack dab in the middle of your face, brings into serious question the reliability and integrity of all of your other research.

I know, it 'raises serious questions.' Robert, if I were to play a drinking game where everytime when reading a Birther blog someone alleged that something "raised serious questions" about Obama I had to take a shot of beer, I doubt I'd make it through the evening.

To the mind of the conspiracy theorist, no proof of the contrary proposition is ever proof; it just ends up somehow being further proof of the conspiracy.

The foundation of any argument about natural born citizenship relies on proof of where the person in question was born, his parents, their citizenship, and their relationship to their home country.

Birth certificates weren't regularly issued in most states until after World War II. How do you think people proved their birthplace before then? They did it with such things like parent testimony. But you discount that in Obama's case.

But in the certificate age, the means of proof is usually by having the appropriate state agency verify the fact of birth. Hawaii has now done that. Yet you discount that.

There is no proof that Birther conspiracists will ever accept. That much is clear to me.; October 15, 2012 at 11:07 PM
MichaelN said...: MichaelN said ...

"Even after all the careful preceeding wording, with particular attention to the definitions, etc, Gray must have DELIBERATELY CHOSEN the words "NATIVE-BORN citizens of the United States", thus he deliberately chose NOT TO USE and AVOIDED applying the Constitutional word of art, i.e. "natural born Citizen".

Why do you suppose that was BrianH?"

BrianH replied...

"Because as to persons born within the U.S., the terms "native born' and "natural born" are interchangeable."

No, not good enough in this particular case.

In the context of Gray's "Opinion of the Court" and his exhaustive and definitive study of the finer points of the language of the ECL and his careful choice of words and terms of art, it is OBVIOUS that Horace Gray DELIBERATELY AVOIDED using the US Constitutional term of art "natural born Citizen" in the instance when he summarized after all the ECL stuff, saying in conclusion....

(Justice Horace Gray - Wong Kim Ark - Opinion of the Court.)

"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, excepting only children of ambassadors or public ministers of a foreign government, were NATIVE-BORN citizens of the United States."

That king-hits your absurd and ridiculous, smug arking nonsense right out of the arena; but of course the coward that you are, hiding behind a pseudonym, would not admit that.

YOU mean to say that Justice Horace Gray who was (allegedly) adamant that a US native-born to alien parents (generally)was a US "natural born Citizen", he just went through the most comprehensive, exhaustive and definitive study of the why's and wherefores of the ECL and that the USC was written in the ECL language and the USC should be read in light of the ECL history, building-up for the big moment the grand finale in SCOTUS history, but when he had THIS GOLDEN OPPORTUNITY to put the cream on the cake, moment of truth stuff, he went all vague and carelessly used a term of art that come flying out of left field to otherwise describe THE VERY TERM OF ART that he was (allegedly) supposed to be tagging the person in question with, leaving it to two-bit attorneys and hopey-changey word-contortionists to argue over the meaning of native versus natural ............. yeah, right, in your dreams.

What a pathetic joke you are!

The TRUTH IS, as we both know (but you of course would not admit) that Justice Horace Gray said "native-born citizen of the United States" BECAUSE THAT IS WHAT HE DELIBERATELY MEANT TO SAY, he DELIBERATELY AVOIDED USING THE USC TERM OF ART "natural born Citizen" and in the final decision of the court for the SECOND SMACK-DOWN, Wong Kim Ark was affirmed as a "citizen" ONLY.

YOU LOSE!

Time to man-up BrianH.; October 15, 2012 at 11:22 PM
BrianH said...: @MarioA

Part I

You might think that you have provided some great answers.

I do.

On the contrary, your answers are repetitive . .

That's because you keep making the same arguments.

. . . just to satisfy your need that Obama be declared a “natural born Citizen” ..

For that I need but read the 10 - 12 or so cases that have declared Obama an NBC, like your Purpurra and Tisdale cases. Here I'm just demonstrating the reasons why every judge has ruled that way and why every judge will continue to rule that way.

when the historical record is replete with evidence that the Founders and Framers used the “natural born Citizen” clause as a national security and safety provision for the nation.

But it's a non-sequittur to conclude that the safety motivation requires a newborn to have two citizen parents. Let's take 3 cases: a) Johnny, who is born with an American mother and alien father, b) George, who is conceived to an American mother and alien father, but whose father the week before birth is naturalized, and c) Mary, who is born to an American mother and alien father, whose father the week after birth is naturalized.

In your view of the world, Johnny and Mary are "security threats" because they were not "natural born citizens," while George is not. You make the Framers out to be akin to astrologers who viewed the parents' citizenship status at birth as somehow influencing that infant's political allegiance forevermore.

Your theory is cockamamie nonsense. Please explain how the Framers could POSSIBLY see these cases as different.

Again, I'm just observing why no judge in the U.S. will ever buy into this "two citizen parent" absurdity.

You have failed to adequately address, among the many points made on this blog, the issue of a “subject” under English common law versus a “citizen” under American common law.

In WKA, the Court cites to authorities saying in that context "subject" and "citizen" are "interchangeable terms." There isn't much "versus" to address.

You have the dishonest nerve to argue that Minor is not relevant on the question of citizenship in the United States

Strawman argument alert #whatever.

Minor can be cited for the proposition that a person born in the U.S. to citizen parents is an NBC. Minor CANNOT be cited as to the question of whether a person born to alien parents is an NBC, because the Minor case didn't present that fact situation, and the Court expressly stated it wasn't addressing that question!

As a lawyer, you should know that the SCOTUS does not issue opinions that are in any way binding on situations not presented by the case at hand. The dishonesty here is you suggesting otherwise.

and that it did not confirm the definition of a “natural-born citizen.”

It didn't purport to make any definition. It was merely trying to show the (non-disputed point) that Virginia Minor would have been considered a citizen under the common law. Her being a citizen was material to her 14th A claim. But whether she was a citizen from birth or a naturalized citizen was immaterial: her voting rights claim did not depend on her being an NBC. The Court simply observed she was an "NBC" and thus a citizen from birth. The opinion says NOTHING about the children of aliens.; October 16, 2012 at 11:39 AM
BrianH said...: Part II

You do not address the conflicting position on citizenship of the “common-law” recognized in Minor and the “common law” recognized in Wong Kim Ark.

There is no conflict. Minor stated that a person born of citizen parents was an NBC under the common law, but didn't address the situation of a person with alien parents. WKA analyzed the latter situation, noting that Constitutional language is to be understood via the history of the ECL, noting that under the ECL persons born of alien parents in amity are "natural born subjects," then noting that the "same rule" prevailed under the original Constitution (and that "subject" and "citizen" here are interchangeable).

Minor indicated that children of citizen parents are NBC. WKA indicated that chilren of alien parents are too. No conflict.

Your position on Minor is so outlandish that you even say that it cannot be used as any precedent with respect to the question of whether a child born in the United States to alien parents is a “natural-born citizen.”

It can’t. The case DIDN’T present that fact situation, and the Court didn’t address that. The Court only addressed the situation before it: that of a person born of citizen parents.

You have failed to convincingly reply to my response to your Justice Gray “same rule” argument.

Given you never articulated what “rule” was “the same,” there was not much for me to say. But I set up the question precisely that way: if you explained the rule at all as Gray explained it, it would reveal the problem with your “two citizen parent” argument. If you said (as you finally did), “Justice Gray was wrong,” then I show how your having to come into a court and tell some judge “the U..S Supreme Court was wrong, listen to me” is exactly the sort of litigation position that gives one a batting average of ‘zero’ on the Vattel theory.

You continue your dishonesty by using “natural born” rather than “natural born Citizen,” knowing that the English common law made no mention of a “natural born Citizen” but rather used “natural born subject” and using the expression “natural born” to hide that fact.

Oh, c’mon. You were dishonest in claiming that I “finally accepted” the notion of “American common law” when all along I’d been citing that excerpt from WKA which spoke of that very thing. Here, you’re being just as misleading.

I’ve been continuously quoting the entire paragraph where Gray says “therefore every child born in England of alien parents was a natural-born subject.” But, according to you, I’m “hiding” the fact he said “natural born subject.” Got it.

You continue to spin the Wong Kim Ark case, dishonestly proclaiming that the Court held Wong to be a “natural born Citizen” . . .

Please explain how I can be labeled “dishonest” when two Justices on that very Supreme Court, including the Chief Justice, acknowledged that very thing: that the Court majority’s opinion makes someone like Mr. Wong (and by implication Mr. Obama) presidential eligible!! This is a question that demands an answer. I will stick around here long enough for you to tackle that one.

In short, you have failed to convince me of anything.

I can no more convince a “flat earther” that world is spherical. But what I can do is present the case to show that his position is objectively unreasonable to any thinking person who doesn’t approach the question with a blind agenda.; October 16, 2012 at 11:49 AM
BrianH said...: @MichaelN

Well it seems that it might be a good practice to adopt ...

And I might otherwise agree, were it not for this blog's infernal 4,096 character limit. Adding "except for the children of hostile invaders or foreign diplomats" every time uses up characters.

ridiculously trumpeting that a native-born in US to alien parents, is a "natural born Citizen" because this is what ECL allegedly says

Here's where you needed more characters.

A person born in the U.S. to alien parents (in amity) is a "natural born citizen" because the U.S. Supreme Court analyzed that ECL rule to be the underpinning of the ACL as it pertained at the time of the Constitution. Have you noticed that every court addressing the contention that Barack Obama is not an NBC because of his father has rejected that claim, and that they have all relied on the same case? And that the case they rely upon is WKA, not Calvin's Case?

You are absurdly mesmerized by Calvin's Case. This may come as a shock to you, but no judge is ever going to rule on the question of President Obama's NBC status soley by looking at Calvin's Case. Michael, at some point you need to get past the early 17th century.

BUT, before you do, I'm sure you'll want to answer my question:

"Take the case of a Frenchman coming for a time to England and siring a child born in England. At his birth, how many "allegiances" does that child owe? Just one (to the English crown)? Or two (both to the Crown and to France, the country of his father?) And how do you explain your answer?"

It would be a tragedy to leave this blog without having that answered. (Maybe my next career should be as a dentist, given how it's like pulling teeth to get people here to answer a question).; October 16, 2012 at 12:54 PM
BrianH said...: @MichaelN

Take the case of a Frenchman coming for a time to England and siring a child born in England. At his birth, how many "allegiances" does that child owe? Just one (to the English crown)? Or two (both to the Crown and to France, the country of his father?) And how do you explain your answer?"

Reply:

You are speaking within the context of ECL .... right?

In this example, yes.

The child's status as a natural born subject or subject born would be as a direct result of having been native-born and "born under the ligeance of a subject".

I get the part the child is a natural-born subject.

But the Father still has an allegiance to France, in addition to the Father's temporary allegiance to the English crown by virtue of his presence in England.

So does the child born have but one allegiance (to the English crown)? Or two (to the Crown, as well as to France by virtue of his Father's permanent allegiance there)?

You still haven't answered that. An answer will have either the word "one" or "two" in it.

As to your "what common law" question, I refer you to your question and my answers from July 5 and 6. You can also refer to my recent 2-part reply to Mario where I explain in detail why there is no conflict between Minor and WKA.; October 16, 2012 at 1:03 PM
Mario Apuzzo, Esq. said...: BrianH,

The friendly Frenchman with his wife located in England and their son born there had an allegiance or tie to the King which was strong enough under English common law to make the alien parents “subjects” of the King and their son a “natural born subject” of the King. Assuming those alien parents to be in the United States and their child to be born here, under American “common-law” and Congressional Acts, as confirmed by Minor v. Happersett (1875), that allegiance and tie was not strong enough to make either the parents “citizens of the United States” or their son either a “natural born Citizen” or even just a “citizen of the United States.”

Our citizenship laws changed with the Fourteenth Amendment and its interpretation and application by U.S. v. Wong Kim Ark (1898). While the U.S. domiciled and resident parents under American “common-law” and Congressional Acts were still not “citizens of the United States,” under the Fourteenth Amendment their son became a “citizen of the United States” from the moment of birth, for the parents and their son at the moment of his birth were held to be “subject to the jurisdiction” of the United States through their being physically present on U.S. territory and thereby being obligated to obey the laws of the United States. So, while the son became a “citizen of the United States” from the moment of birth, he did not become a “natural born Citizen,” which status Minor explained was reserved only to the children born in the United States to parents who were not only aliens but U.S. “citizens” at the time of the child’s birth.

So, BrianH, this is, indeed, a place where you can ask questions about Obama's eligibility to be President and get the right answers.; October 16, 2012 at 1:40 PM
BrianH said...: @MichaelN

In the context of Gray's "Opinion of the Court" and his exhaustive and definitive study of the finer points of the language of the ECL and his careful choice of words and terms of art, it is OBVIOUS that Horace Gray DELIBERATELY AVOIDED using the US Constitutional term of art "natural born Citizen" in the instance when he summarized after all the ECL stuff[.]

During his survey of American law, J. Gray cites to, among others, Chancellor Kent, Chancellor Sandford,and Senator Trunbull. Each of them uses "native born" interchangeably with "natural born."

"As the President is required to be a native citizen of the United States…. Natives are all persons born within the jurisdiction and allegiance of the United States.” James Kent, Commentaries on American Law (1826).

Chancellor Sandford in the case of Lynch v. Clarke (1848) stated:

"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 . . .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.”

Trunbull stated:

"By the terms of the Constitution he must have been a citizen of the United States for nine years before he could take a seat here, and seven years before he could take a seat in the other House ; and, in order to be President of the United States, a person must be a native-born citizen." April 11, 1871, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)

So picture Horace Gray sitting down and doing the background research before writing his opinion. Several of the sources he's consulting use the term "native born" in place of "natural born" when discussing Presidential eligibility. And no source writing during this period states that as to U.S. born persons there is any disctinction in meaning between "native born" and "natural born." So when Gray uses the term "native born citizen" in the portion you've quoted, he's using it just as the writers he's quoted used it: meaning a person born in the U.S. and subject to its jurisdiction who is entitled to be President; interchangeable with "natural born."; October 16, 2012 at 10:19 PM
Mario Apuzzo, Esq. said...: BrianH,

If as you claim Wong Kim Ark said that we are to define a “natural born Citizen” under the English common law and that a “natural born Citizen” had the same meaning as a “natural born subject” under English common law, do tell us why Wong Kim Ark stated in its holding that Wong was a “citizen of the United States” and did not state in that holding that he was a “natural born Citizen?”; October 16, 2012 at 11:35 PM
Mario Apuzzo, Esq. said...: BrianH,

Do you really believe that you are providing any substantive argument that demonstrates that I am wrong when you simply tell us what a current court has ruled? If you can show that that court specifically addressed by argument and showed how I am wrong, then you might have something. But otherwise, you have zero.; October 16, 2012 at 11:56 PM
BrianH said...: @MarioA

If as you claim Wong Kim Ark said that we are to define a “natural born Citizen” under the English common law and that a “natural born Citizen” had the same meaning as a “natural born subject” under English common law, do tell us why Wong Kim Ark stated in its holding that Wong was a “citizen of the United States” and did not state in that holding that he was a “natural born Citizen?”

Yawn. I've already answered that:

"Your third point that this is obiter dictum is incorrect. The Court is analyzing the meaning of "born . . . in the U.S., and subject to the jurisdiction thereof" under the 14A. To that end, it analyzes how under the ECL children of aliens were 'natural born' except in the two noted cases (Part II). In Part III it analyzes how that same rule prevailed under the original Constitution. And then in Part V it concludes that that same principle was incorporated into the 14A's "born and subject to" language.

So, yes, the Court's analysis of the ECL and ACL rules ties in directly to the meaning it ascribes to the 14th amendment. it is thus part of the ratio decidendi of the case."

You confuse the decision in the case (that Wong, being a citizen, could not be denied entry to the U.S.) with the ratio decidendi of the case (which is the legal principle which is applicable and binding to future case). The latter shows that the common law meaning of NBC and "born .. in the United States, and subject to the jurisdiction thereof" mean the same, both deriving from the common law of England. So in declaring Mr. Wong "born in the U.S., and subject to the jurisdiction thereof," the Supreme Court was equally indicating Mr. Wong was NBC, because the Court defined them to mean the same thing.

Chief Justice Fuller saw this, even if you are too myopic to see it.; October 17, 2012 at 12:17 AM
BrianH said...: @MarioA

Do you really believe that you are providing any substantive argument that demonstrates that I am wrong when you simply tell us what a current court has ruled?

But that is not what I've simply told you. I've shown you how the "same rule" statement by the SCOTUS majority equating the ACL rule with the ECL rule that says "therefore every child born in England of alien parents was a natural born subject" makes everyone like Mr. Wong thus an NBC.

I've shown how Chief Justice Fuller agreed.

And I've noted that EVERY court that to date has addressed the "two citizen parent" argument (including the Fourth Circuit) has rejected it.

And there is not a single court case or treatise that states that Minor stands for the propositon that children of alien parents are not NBC.

At some point your position becomes objectively irrational. To me, that's been demonstrated.

You take issue with the Founders’ and Framers’ policy decision that all future Presidents must be “natural born Citizens.”

I could decorate my entire neighborhood for Halloweenn with all the strawmen you haul out.

I don't take issue with the Founders' and Framers' decision. I take issue with your MANIFESTLY STUPID, astrology-like view that the Framers believed parental alien status at the time the wee one passes through the birth canal created some sort of mysterious "allegiance" in the infant that would 35 or more years later create some security danger. That an alien father naturalized a week before the birth alleviates this "security issue," whereas the father being naturalized a week afer birth leaves the "danger" present.

Your theory is utter nonsense. Again, I'm just showing my the current courts have rejected it -- and always will. Experienced jurists have a nose for this sort of BS you offer.; October 17, 2012 at 12:30 AM
Mario Apuzzo, Esq. said...: BrianH,

You take issue with the Founders’ and Framers’ policy decision that all future Presidents had to be “natural born Citizens.” Well, they wrote the Constitution and you have got to live with it. If you believe their national security and safety policy decision makes no sense because aliens, or “Citizens of the United States” after birth, or children born in the United States to alien parents can be just as loyal to the United States as “natural born Citizens,” get the Constitution amended. But until you do, live with it.; October 17, 2012 at 12:34 AM
Mario Apuzzo, Esq. said...: BrianH,

You spin on Minor is so pathetic. First, you tell us that the English common law is to be looked at in defining a “natural born Citizen.” Then you tell us that Minor only considered one situation in that regard and that it was that of a child born in the country to “citizen” parents. You add that there could be other birth circumstances for a child which also made him a “natural born Citizen,” such as being born in the United States to alien parents.

But you also tell us that the English common law did not require “subject” (“citizen”) parents for children born in the King’s dominion. In fact, you have quoted all over this blog the words of Lord Coke and William Blackstone, telling us that they did not require that the parents of any child born in the King’s dominion be “subjects” in order for the child to be born a “natural born subject,” and that even if their parents were just “aliens” in amity, their child born in the King’s dominion was a “natural born subject.”

So, BrianH, do you care to tell us if the English common law did not require “subject” parents to make a “natural born subject,” and if Minor gave us the English common law definition of a “natural born Citizen” as you maintain, why would Minor present a definition of a “natural born Citizen” which included a situation of the child born in a country being born to “citizen” parents when the English common law made no such requirement? Additionally, why would Minor say that “there have been doubts” whether a child “born within the jurisdiction” to alien parents was a “citizen” when under the English common law there never was any doubt that that child was a “natural born subject?”

Please do tell all.; October 17, 2012 at 1:13 AM
MichaelN said...: BrianH said ....

"So picture Horace Gray sitting down and doing the background research before writing his opinion. Several of the sources he's consulting use the term "native born" in place of "natural born" when discussing Presidential eligibility. And no source writing during this period states that as to U.S. born persons there is any disctinction in meaning between "native born" and "natural born." So when Gray uses the term "native born citizen" in the portion you've quoted, he's using it just as the writers he's quoted used it: meaning a person born in the U.S. and subject to its jurisdiction who is entitled to be President; interchangeable with "natural born." "

You're dreamin'.

Justice Gray, at that point of his "opinion of the court" where he was summarizing and concluding the chapter on his exhaustive and definitive study and explanation of 17th century ECL, would have made completely sure to use the same language as the ECL and the USC, i.e. "NATURAL BORN" but he didn't at that crucial moment.

IF Justice Gray really believed that the ECL was that which the framers sourced their term of art "natural born Citizen" from, then at that crucial crunch-time of his conclusion of studying and reasoning that the ECL and the USC where the same, i.e. the two terms of art, both contained two words identical and one word interchangeable or analogous, Justice Gray would have used the term of art COMMON TO BOTH the ECL and the USC terms of art, but Justice Gray DIDN't, instead Gray used the term "NATIVE-born" and hyphenated it to boot; a term not even used in the ECL case that Justice Gray cited to.

Your argument is absurd and ridiculous to the extreme.

Gray DELIBERATELY used the term "native-born citizen" to avoid using the USC term of art "natural born Citizen", then he followed through by giving Wong only a "citizen of the United States" because that's what Wong was, only a "citizen of the united states" and NOT an Article II "natural born Citizen".

You still have not admitted your previous EPIC FAILURE on the "disjunctive" "nor" "two situations" garbage you tried to push, when I showed you HOW WRONG you were, in that BOTH Lord Coke AND Justice Horace Gray DISAGREED WITH YOU!

This latest dishonest and desperate effort on you part, is yet another of your nonsense pieces that I wouldn't hold my breath waiting for you to man-up and admit your additional abysmal epic failure.

YOU LOSE! ..... AGAIN!

Stick around BrianH, you might even get some MORE right answers.; October 17, 2012 at 1:16 AM
BrianH said...: @MarioA

Part I

First, you tell us that the English common law is to be looked at in defining a “natural born Citizen.”

It's the U.S. Supreme Court that tells you that and which analyzed "NBC" by first looking to the language of the ECL. But, of course, you can't come to terms with that, despite my having rubbed your nose in the Court's language at least a dozen times now. So you keep trying to pass this off as something "I'm" suggesting. You can stop the dishonesty any time now.

Then you tell us that Minor only considered one situation in that regard and that it was that of a child born in the country to “citizen” parents.

It DID only consider that one situation. And so, per jurisprudential rules relating to stare decisis, the Minor decision is only precedential as to a person born of citizen parents. The case has nothing to tell us about a person born of alien parents.

Again, as an attorney, you should know that. But, of course, it serves your purpose to delude your loyal followers that Minor sets some grand precedent relating to alien born children when it doesn't at all.

But you also tell us that the English common law did not require “subject” (“citizen”) parents for children born in the King’s dominion.

The alien parents had to be ones who were subject to the jurisdiction of the sovereign. Justice Gray makes this clear:

"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 such persons were born "subject to" the King's jurisdiction. Justice Gray similarly notes that persons of alien parents born in the U.S. were born subject to U.S. jurisdiction. For example, his citation to Chancellor Kent:

"Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent."

Though in both cases Gray (following Blackstone) refers to the parents as "aliens."

But, as I've shown, since in the case before him of Mr. Wong, Justice Gray had a person born of alien parents, naturally the rules Gray is adducing are those which related to alien parents.

that even if their parents were just “aliens” in amity, their child born in the King’s dominion was a “natural born subject.”

That's right. Do I need to quote Blackstone again as well? He states this point-blank.

So, BrianH, do you care to tell us if the English common law did not require “subject” parents to make a “natural born subject," . . .

It required the alien parents to be subject to the jurisdiction of the King. The passage from Gray I keep citing makes this clear. That's which children of hostile invaders and diplomats are not NBS because their parents were not under the King's jurisdiction.; October 17, 2012 at 10:58 AM
BrianH said...: Part II

and if Minor gave us the English common law definition of a “natural born Citizen” as you maintain,

I am beyond fed up with your persistant strawman mischaracterizations. Please show me where I have said "Minor gave us the English common law definition." You will fail (among your numerous other failures here) to show that, because I've never said that.

why would Minor present a definition

It didn't present a "definition." That's Birther-spin on Minor.

of a “natural born Citizen” which included a situation of the child born in a country being born to “citizen” parents when the English common law made no such requirement?

Because the term "the common law" wasn't some singular concept. Common law derived from England, but it was adopted by the various states to varying degrees. So at the nation's founding, there were 13sets of common law, largely overlapping, but as time went on and caselaw developed within each state, interpretations differed in some respects. That's why there arose "majority" and "minority" positions among the common law of the states.

Now, of course, you learned this (or should have) in law school. I'm happy to provde you an obviously much-needed refresher course.

Additionally, why would Minor say that “there have been doubts” whether a child “born within the jurisdiction” to alien parents was a “citizen” when under the English common law there never was any doubt that that child was a “natural born subject?”

Because among the caselaw of the various states there may have been "minority" positions taken. In WKA, J. Gray cites to a NJ case, Benny v. O'Brien, where in dicta the Court states: "The colored people were no more subject to the jurisdiction of the United States, by reason of their birth here, than were the white children born in this country of parents who were not citizens." Now, every other authority Gray cites states that before the 14th A children of alien were subject to U.S. jurisdiction. That bit of dicta above seems anomalous.

So Minor in talking about the "doubts" may have had in view some case or commentary like the one above. We don't know. Minor doesn't tell us what, if any, precedents it's reviewing. What Minor does indicate is that no matter which "common law" one looked to (that of England or any of the various states), it was agreed at least that Mrs. Minor would be construed as NBC. And that's all the court was trying to show: she was undoubtedly a citizen under pre-14th amendment law.

Please do tell all.

There you have it.

Now, am I ever going to learn whether that English-born child of the English mother and friendly-Frenchman father had but one allegiance, or whether the child had two?

Of course, as you might guess, I'm chuckling to myself royally (because I'm an Obot royalist) seeing you and Michael stumped on answering that one.

Since I had to split this reply and now have a few extra characters to spare, I'll remind you of this question, too:

"Please explain how I can be labeled “dishonest” when two Justices on that very Supreme Court, including the Chief Justice, acknowledged that very thing: that the Court majority’s opinion makes someone like Mr. Wong (and by implication Mr. Obama) presidential eligible!!"

My prediction is you'll be stumped on this one, too.; October 17, 2012 at 11:01 AM
Carlyle said...: One can have an intelligent argument/debate on whether the NBC requirement was a good idea originally, and even so if it is any longer useful and ought to be expunged.

However, it seems juvenile and disingenuous to weasel away the original restrictive meaning.

Besides, engaging in twisted tortured logic should be considered as shameful, not honorable.

I like and respect most lawyers, but have been dismayed for decades at what I consider to be a despicable tactic practiced sometimes by some lawyers -

Arriving at an ill-informed and perhaps political or ideological beneficial position and then searching for case law or any other thing that can be used to defend the desired outcome.

(My all time favorite political example is when the Electoral College was essentially subverted and voting became essentially a popular vote. The constitution is very clear on how the presidential elections are to be conducted but we don't do it that way.)

I have long maintained that if you remove The Obama from the equation and just stand back and take a disinterested objective look into the matter, the meaning of NBC will be blazingly obvious and clear.

Some years ago, even Obama supporters thoroughly understood this - as evidenced by reports, legal briefs, and senate resolutions, that attempted to overturn or undermine the NBC clause.; October 17, 2012 at 11:54 AM
MichaelN said...: @ BrianH who said ....

"Now, am I ever going to learn whether that English-born child of the English mother and friendly-Frenchman father had but one allegiance, or whether the child had two?"

According to the 17th century ECL, the child would be an English NBS, due to "nature and birthright", i.e. due to the local ligeance of the father, and birthright in the King's realm.

The child would be an English "subject born" aka NBS, via TWO qualities,

i.e.

1) "nature", "born under the ligeance of a subject" - jus sanguinis and,

2) "birthright", born in the realm of the sovereign - jus soli

Coke:

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

"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;"

The child would apparently be considered by the ECL to have one allegiance at birth.

Nowhere in the 17th century ECL was it held that native-birth was the sole criteria in determining English "subject born" aka NBS status at birth, of a native-born child; is was essential that the child be "born under the ligeance of a subject".

CLIVE PARRY
M.A., LL.B.

Fellow and Tutor of Dowling College and Lecturer in the University of Cambridge
BRITISH NATIONALITY LAW AND THE HISTORY OF NATURALISATION
MILANO — GIUFFRÈ — 1954

Parry says....

"1) The principle of the ius sanguinis was AT ALL TIMES reluctantly admitted in ENGLISH or British nationality LAW and practice and imperfectly understood."

"the principles of the jus soli and the jus sanguinis do not stand opposed to one another. In most legal systems they are to be found intertwined, each supplying the limitations of the other. But the degree to which one or the other has been emphasised at any time may well have varied."

"Coke’s exception of children born in a castle or fort within the realm but in hostile occupation indicates that something more than mere birth within the realm was required"

http://www.uniset.ca/naty/parry.htm; October 17, 2012 at 5:33 PM
MichaelN said...: Here's another citation of Justice Horace Gray in the Wing Kim Ark opinion of the court, which confirms that the WKA court acknowledged the essential requirement for the parents status to be a "subject" for his child to be a "natural born subject".

"3 Pet. 120. Mr. Justice Johnson said: "He was entitled to inherit as a citizen born of the State of New York." 3 Pet. 136. Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin's Case, Blackstone's Commentaries, and Doe v. Jones, above cited, and saying:

Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance;"

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html; October 17, 2012 at 5:52 PM
MichaelN said...: Let's look a little closer at what Justice Horace Gray had to say in his "opinion of the court" in the WKA case.

"Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin's Case, Blackstone's Commentaries, and Doe v. Jones, above cited, and saying:

" ....... That is, the party must be born within a PLACE where the sovereign is at the time in full possession and exercise of his power, and the party MUST ALSO, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto"

Again we see recognition on the part of the SCOTUS of TWO ESSENTIAL qualities to make a "natural born" subject/citizen,

i.e. the "place" is covered by "must be born within a place where the sovereign is at the time in full possession and exercise of his power"

Then we have the OTHER ESSENTIAL REQUIREMENT,i.e. "and the party MUST ALSO, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto"

This SECOND ESSENTIAL REQUIREMENT is where the native-born to the "place" must also be "born under the ligeance of a subject" to, "at his birth derive the OTHER things necessary to make a NBS/C.

And so, BrianH, YOU LOSE again.; October 17, 2012 at 10:36 PM
Mario Apuzzo, Esq. said...: BrianH,

I am still waiting for you give me an example of an “alien” physically present in the King's dominion who was not a “subject” of the King, but was under his protection, and who could give birth to a child in the King’s dominion who was considered a “natural born subject.”; October 17, 2012 at 10:43 PM
Mario Apuzzo, Esq. said...: BrianH,

You have not addressed the fact that both Lord Coke in Calvin’s Case and William Blackstone in his Commentaries considered a child born in the King’s dominion and under his allegiance to alien parents to be a “natural born subject” by naturalization at birth. Do you want to try again?; October 17, 2012 at 11:04 PM
BrianH said...: @MichaelN

The child would apparently be considered by the ECL to have one allegiance at birth.

Well, finally. Hopefully, the Tooth Fairy will stop by to reward me for all the teeth-pulling it required for me to get answer.

And this is very helpful. For it's also the case that aliens within the U.S. are "under the jurisdiction" of the sovereign (and thus owing an "allegiance" to the U.S. of a temporary nature). J. Gray cites to Chancellor Kent to again show the "same rule" operates as between England and the U.S.:

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

So equally so, then, the alien who is not a foreign diplomat or hostile invader is likewise "under the jurisdiction" of the U.S, and that person's child at birth would owe but ONE allegiance -- to the U.S. -- by operation of the "same rule" by which you (Michael) have now acknowledged would cause that child of that English mother and Friendly-French Father (alliteration lovers rejoice) to owe but ONE allegiance.

We're making progress here.; October 17, 2012 at 11:15 PM
MichaelN said...: Mario Apuzzo, Esq. said...

"BrianH,

I am still waiting for you give me an example of an “alien” physically present in the King's dominion who was not a “subject” of the King, but was under his protection, and who could give birth to a child in the King’s dominion who was considered a “natural born subject.” "
-------------------

Don't hold your breath Mario, and besides, you will have to wait in queue, I am still waiting for BrianH to man-up and admit his EPIC FAILURE when he smugly tried to put it over with his absurd and ridiculous garbage about "disjunctive", "nor" and "two situations", but he was SMACKED-DOWN by the truth, when it was shown that BOTH Lord Coke and Justice Horace Gray DID NOT AGREE with his garbage "facts".

I suspect BrianH will run away and hide again or use his other tactic, i.e. come back with a barrage of more garbage not even remotley associated with the question you put to him, to avoid addressing and answering your question.

BrianH doesn't care about or want to know the truth, he wants to suppress the truth.; October 17, 2012 at 11:17 PM
BrianH said...: @MichaelN

Clive Parry: "Coke’s exception of children born in a castle or fort within the realm but in hostile occupation indicates that something more than mere birth within the realm was required"

Brian (10/5 @8:49 a.m.): "Per the laws of England, it sufficed to make one a "natural born subject" if one was a) born on English soil and b) one's father (even though an alien) was in amity (i.e., not a hostile invader or diplomatic agent)."

Wow! It seems this Clyde Parry guy and I are so totally on the same page here.

Michael, next time maybe you can just quote me.; October 17, 2012 at 11:24 PM
Mario Apuzzo, Esq. said...: BrianH,

Your question about whether the son of a Frenchman born in England had one or double allegiance is a red herring. Under the American “common-law” definition of a “natural born Citizen,” as long as the parents were “citizens” and the child was born in the country to them when they were “citizens,” that child was a “natural born Citizen.” There was no inqury into how many allegiances the natural born son of “citizen” parents had, provided he was born in the country to “citizen” parents. So, do not think that you have made some great discovery with your son-with-dual-allegiance question.; October 17, 2012 at 11:49 PM
BrianH said...: @MarioA

I am still waiting for you give me an example of an “alien” physically present in the King's dominion who was not a “subject” of the King, but was under his protection, and who could give birth to a child in the King’s dominion who was considered a “natural born subject.”

I covered this earlier in Part I of my 2-part post:

"The alien parents had to be ones who were subject to the jurisdiction of the sovereign. Justice Gray makes this clear:

"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 such persons were born "subject to" the King's jurisdiction. Justice Gray similarly notes that persons of alien parents born in the U.S. were born subject to U.S. jurisdiction. For example, his citation to Chancellor Kent:

"Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent."

Though in both cases Gray (following Blackstone) refers to the parents as "aliens."

But, as I've shown, since in the case before him of Mr. Wong, Justice Gray had a person born of alien parents, naturally the rules Gray is adducing are those which related to alien parents."

***

Aliens in amity are bound to obey the law of the land, i.e., the law they are subject to while residing in the U.S., and they can be prosecuted under that law. This distinguishes them from foreign diplomats who are granted "diplomatic immunity." The latter are not "subject to' the law in that way. Their children are not "natural born citizens." But the children of the first set of aliens are "natural born citizens," because both parent are child are subject to the sovereign.

Now: Please explain how I can be labeled “dishonest” when two Justices on that very Supreme Court, including the Chief Justice, acknowledged that very thing: that the Court majority’s opinion makes someone like Mr. Wong (and by implication Mr. Obama) presidential eligible!!; October 17, 2012 at 11:50 PM
Mario Apuzzo, Esq. said...: BrianH thinks that he is on to something by relying on Lord Coke and his military invader example. BrianH and those of like mind totally misunderstand what Coke meant by way of his example involving a military invader of a fort in England. He fails to understand that there are several exceptions in the English common law to jus soli subjecthood/citizenship, e.g., parents who were foreign diplomats or military invaders, which actually confirm the general doctrine that all aliens in amity while physically present in the King’s dominion were the King’s “subjects.” The aliens who fell within these exceptions did not owe the King any allegiance, obedience, faith, or loyalty and were therefore not his “subjects.” But all other aliens in amity located within his dominion did owe him that allegiance and obedience, were under his power and jurisdiction, which made them his “subjects” and for which he owed them protection.

But again, in the United States, an alien, no matter what his circumstances may have been, could not be a “citizen of the United States” unless he naturalized. In the United States, an alien could not beget a “citizen of the United States,” let alone a “natural born Citizen.” An alien had to be naturalized to be a “citizen of the United States” in order to beget a “citizen of the United States” (when the child was born out of the United States) or a “natural born Citizen” (when the child was born in the United States).; October 18, 2012 at 12:11 AM
MichaelN said...: @ BrianH.

The operative words of Chancellor Kent....

"I do not perceive".

Same as YOU do not "perceive" when it's staring you smack-on, straight in the eye.; October 18, 2012 at 12:30 AM
Mario Apuzzo, Esq. said...: BrianH,

Your attempt to get around the “alien in amity/subject” problem by saying that these aliens were not “subjects” of the King, but rather only “subject to” the King’s jurisdiction and laws is a pathetic failure. First, the English common law used the clause “natural born subject,” not “natural born subject to.” Second, Justice Gray’s own statement in Wong Kim Ark informs us that these aliens in amity “were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English sovereign.” Hence, they were much more than just “subject to” the King’s jurisdiction and laws. They were actually within his allegiance, obedience, faith, and loyalty, and in return received the King’s protection. Having these obligations and duties to the King, they were the King’s “subjects.” So under the English common law, if an alien was “subject to” the King jurisdiction and laws, he was a “subject” of the King.

Chancellor Kent is wrong when he says that the parents’ “political condition or allegiance” was irrelevant under the common law to make a “native.” As we can see, Justice Gray informed us that the parents’ political condition and allegiance mattered much. After all, how can we say that a person who owes to a sovereign allegiance, faith, and loyalty for which he receives protection from that sovereign does not have a political relationship with that sovereign? Such a statement would be absurd.; October 18, 2012 at 1:07 AM
MichaelN said...: BrianH said...

"@MichaelN

Clive Parry: "Coke’s exception of children born in a castle or fort within the realm but in hostile occupation indicates that something more than mere birth within the realm was required"

Brian (10/5 @8:49 a.m.): "Per the laws of England, it sufficed to make one a "natural born subject" if one was a) born on English soil and b) one's father (even though an alien) was in amity (i.e., not a hostile invader or diplomatic agent)."

Wow! It seems this Clyde Parry guy and I are so totally on the same page here.

Michael, next time maybe you can just quote me."

'WOW' indeed, now you are resorting to Biden debating tactics.

Look BrianH this nonsense post of your is hardly worth responding to; just observing what you said and the manner in which you said it, demonstrates your FAILING to produce any kind of reasonable argument of worth.

To show-up your pathetic attempt to shore-up your already FAILED argument, it suffices to say that it is already a proven fact that the "alien in amity" was a "subject", and as such his child could be a NBS, due to being "born under the ligeance of a subject".

YOU LOSE AGAIN!; October 18, 2012 at 1:26 AM
MichaelN said...: BrianH.

You are all over the place desperately mining for words and grammatical expressions to use to plug your floundering sinking ship.

What matters is the ORIGINAL ECL that was being referred to by Justice Horace Gray in the WKA case.

All the rest of the opinionated commentators' variations on that theme, do not re-define nor change what was clearly said in the first and original instance.

The original ECL case cited to by Justice Horace Gray per ....

Lord Coke - Calvin's case:

"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;"

In ECL, being "under the actual obedience of the King" meant to be a subject, i.e. one of the king's subjects.

Coke - Calvin's case:

"But the time of his birth is of the essence of a subject born; for he cannot be a subject to the king of England, unlesse at the time of his birth he was under the ligeance and obedience of the king."

"Ligeance is a true and faithful OBEDIENCE of THE SUBJECT due to his Sovereign."

"This word ligeance is well expressed by divers several names or synonymia which we find in our books. Sometime it is called the obedience or obeysance of the subject to the King,"

Keep up your futile baling and sink deeper or jump ship.; October 18, 2012 at 2:09 AM
BrianH said...: @MarioA

Your question about whether the son of a Frenchman born in England had one or double allegiance is a red herring.

Au contraire, Monsieur. I have it on great authority that the issue of whether a person is subject to dual allegiance goes straight to the issue at hand. On July 5 on this blog, one MarioA wrote:

"[Obama] was born with dual and divided allegiance and . . . 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."

If that son of a Frenchman was born with just one allegiance (as Michael has now finally stated), then by the "same rule" which the Supreme Court explicitly stated operated as between the ECL and the ACL under the original Constitution, the son of an American mother and foreign father would thus have but ONE allegiance as well.

Under the American “common-law” definition of a “natural born Citizen,” . ..

The Constitution does not "define" the term "NBC." We know from the Minor case that certainly a child of citizen parents is an NBC. But that case didn't touch on the question of alien parents. Later, we learn that a child of an alien parent is also NBC, by virtue of the "same rule" that made children of aliens in England natural born subjects.

Still awaiting this one:

"Please explain how I can be labeled “dishonest” when two Justices on that very Supreme Court, including the Chief Justice, acknowledged that very thing: that the Court majority’s opinion makes someone like Mr. Wong (and by implication Mr. Obama) presidential eligible!!"; October 18, 2012 at 7:30 AM
BrianH said...: @MarioA

Your attempt to get around the “alien in amity/subject” problem by saying that these aliens were not “subjects” of the King, but rather only “subject to” the King’s jurisdiction and laws is a pathetic failure.

Too funny. Today's lesson is on semantics:

"Definition of SUBJECT

1: one that is placed under authority or control: as a : vassal b (1) : one subject to a monarch and governed by the monarch's law (2) : one who lives in the territory of, enjoys the protection of, and owes allegiance to a sovereign power or state " http://www.merriam-webster.com/dictionary/subject

What do you think a "subject" is? Aliens (so-called) living in the sovereign's territory and bound to obey the sovereign's laws are (in that secondary, temporary sense) "subject to" the sovereign and thus "subjects."

Aliens living in the U.S. who are in amity and not foreign diplomats are also "subject to" and "under the jurisdiction of" and "owing allegiance (temporary) to" the sovereign. By virtue of the "same rule" by which children of aliens in England were natural born subjects, children born in the U.S. to these aliens are thus "natural born citizens."; October 18, 2012 at 7:46 AM
BrianH said...: @MarioA

You have not addressed the fact that both Lord Coke in Calvin’s Case and William Blackstone in his Commentaries considered a child born in the King’s dominion and under his allegiance to alien parents to be a “natural born subject” by naturalization at birth.

Where does Blackstone used the term "naturalization at birth?" It's a bit difficult to address something he hasn't said.; October 18, 2012 at 8:25 AM
MichaelN said...: ECL = "Born under the ligeance of a subject" and in the realm, to be an English NBS

ACL = "Born under the ligeance of a" US citizen and in the US, to be a US NBC

It's really that simple, given that during the framing period the ECL was the guide.; October 18, 2012 at 4:01 PM
MichaelN said...: BrianH said ....

"What do you think a "subject" is? Aliens (so-called) living in the sovereign's territory and bound to obey the sovereign's laws are (in that secondary, temporary sense) "subject to" the sovereign and thus "subjects."

Aliens living in the U.S. who are in amity and not foreign diplomats are also "subject to" and "under the jurisdiction of" and "owing allegiance (temporary) to" the sovereign. By virtue of the "same rule" by which children of aliens in England were natural born subjects, children born in the U.S. to these aliens are thus "natural born citizens."

Response:

Get over it BrianH; you have been smacked-down at every twist and turn; the best you have is this nonsense play on words.

Coke - Calvin's case:

"Subjects are called liege people: and in the acts of Parliament in 34 Hen. 8. cap. 1. and 35 Hen. 8. cap. 3., &c. the King is called the liege Lord of his Subjects. And with this agreeth M. Skene in hisbook de expositione verborum (which book was cited by one of the Judges which argued against the Plaintiff) Ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called HIS liege subjects, because they are bound to obey and serve him, and he is called their liege Lord, because he should maintain and defend them."

The point IS that the alien, visiting 17th century England in amity was a "subject" of the king of England, aka an English subject, aka a subject to the king.

Coke:
"as THE subject oweth to the King his true and faithful ligeance and obedience, so the Sovereign is to govern and protect HIS Subjects"

"there is a liege or ligeance between the King and THE subject..."

I am a son of my father, I am a son to him.

Given that "subject" and "citizen" were analogous as was proposed in the SCOTUS, and it was necessary for a native-born child in England to be "born under the ligeance of a subject", to be a NBS, then it would be necessary for a US native-born child in US to be "born under the ligeance of" a US citizen.

YOU LOSE AGAIN BrianH.

Learn to live with it.; October 18, 2012 at 4:27 PM
BrianH said...: @MichaelN

Given that "subject" and "citizen" were analogous as was proposed in the SCOTUS, and it was necessary for a native-born child in England to be "born under the ligeance of a subject", to be a NBS, then it would be necessary for a US native-born child in US to be "born under the ligeance of" a US citizen.

Except that the SCOTUS majority didn't see it your way. For the majority, it was just necessary that the child be born under the ligeance of the sovereign. That was understood to be the case as to all births within the country, with the exception of children of invaders and diplomats. Gray cites with approval the earlier decision by Justice :

"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."

You can search the WKA opinion top to bottom and you won't find the notion of "the child must be born under the ligeance of a subject" written anywhere. That detail which mesmerizes you isn't one the majority opinion even bothers to mention. For the child to be a "natural born citizen," the child need just be born in the country to alien parents who weren't invaders or diplomats.

Why do you think the U.S. Government and the Dissent were arguing Vattel's rule ought to be applied? Answer: because the majority clearly wasn't reading into the ECL some "must be born to a subject which equals being born to a citizen." That's the Vattel notion. That's the losing proposition in WKA. And it's the side you're arguing.; October 18, 2012 at 7:24 PM
Carlyle said...: ON TOPIC

As a result of the Libya discussion at the debate, The Obama has been most forcefully yet proven to be a flaming liar and a manipulator of 'facts' to suit his political agenda and aspirations. So, why in the world do we believe anything he says about his past?

OFF TOPIC

And, speaking of the debate, how can you ignore The Elephant In The Room?

Lately (since the Benghazi incident) he has been on a tear of religious toleration. Either via Hillary, Susan Rice, or he himself, like at the UN speech, have very forcefully disavowed and disparaged, over and over again, ad nauseum, the disrespect, denigration, or blasphemy of other people's religions.

To which I say "hurrah hurrah!" Let us start here:

What about "There is but one god, Allah, and his prophet is Mohamed"? Does that sound very ecumenical to you? Does this sound like the recognition or tolerance of other religions? This says exactly "we are right and you are wrong". This likely rises to blasphemy, and certainly is extremely disrespectful and denigrating. It is really throwing down the gauntlet (of, if you will, showing the bottom of your shoe) at the other guy's religion.

In fact, this is the strongest and most belligerent such statement of any major world religion. So, let's start with this one. Clean it up first, then we can sit back and analyze ourselves and other such elements of Western Civilization and see if we need minor adjustments here and there.

Does that sound OK to you Mr. Obama? Mr. "fair and equal". Mr. "all play by the same rules, on a level playing field".

In any case, apologizing seems way premature.; October 18, 2012 at 7:34 PM
BrianH said...: @MichaelN

ECL = "Born under the ligeance of a subject" and in the realm, to be an English NBS

What's simple is that this "the child must be born under the ligeance of a subject" language you keep hauling out is not stated anywhere in WKA as you phrase it.

Michael, it's a poor way to structure an argument when you make it depend on language within Calvin's Case that the SCOTUS didn't bother to quote. I recall telling you that in July.

You're a slow learner.; October 18, 2012 at 7:38 PM
MichaelN said...: Part 1 of 2

BrianH said ....

"Why do you think the U.S. Government and the Dissent were arguing Vattel's rule ought to be applied? Answer: because the majority clearly wasn't reading into the ECL some "must be born to a subject which equals being born to a citizen." That's the Vattel notion. That's the losing proposition in WKA. And it's the side you're arguing."

Reply:

The court matter was not about whether WKA was a NBC.

Btw, NBC status was not even an eligibility criteria to be a US citizen, rather, it was a term of art used in recognition of a quality of an EXISTING citizen's status beyond the basic minimum standard that made a US citizen.

It was a click above a 14th Amendment "citizen of the United States".

What Justice Horace Gray recognized was that the minimum standard to be met for "citizen of the United States" was already in practice prior to the 14th Amendment, "for all white persons at least".

By studying the ECL and the ACL he pointed out where the native birthright part of the equation had it's origins.

The WKA case was ONLY EVER about interpretation of the 14th Amendment and how it applied to WKA.

It was about birthright US citizenship via native-birth to alien, non-citizen parents, and NOTHING MORE.

It was about what "subject to the jurisdiction" meant, it was NOT about WKA being born "under the ligeance of" a US citizen, as Justice Horace Gray was very careful to state in his summary conclusion at the end of all his exhaustive and definitive study of ECL, Gray deliberately and carefully chose to use a term of art, not found in either the ECL or the USC, instead of the very term of art that he was VERY FOCUSED ON DEFINING; although the time was ripe to say "natural born Citizen" right there and then, if he really thought it to be so, but he DIDN'T, he instead said ....

"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."

Think!...."born within the sovereignty", aka born "subject to the jurisdiction" as opposed to, born subject to the jurisdiction AND in allegiance, hence Horace Gray chose "NATIVE-born" but NOT "natural born" at that very crucial and RIPE TIME for him to say it as he he saw it.; October 19, 2012 at 12:28 AM
MichaelN said...: Pert 2 of 2

It's really very simple BrianH, even the US Citizenship & Immigration Service recognizes the distinct difference between native-born and natural born US citizens.

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45077/0-0-0-48575.html

"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."

Your whole argument is absurd at it's core and you are so desperate that you are merely playing with words and grammar as you sink deeper into your bog.

Why would the Framers of the USC, who were VERY SERIOUSLY CONCERNED about foreign influence and national security, choose to have a person with dubious and uncertain allegiance and loyalty to the US as POTUS, i.e. merely a native-born to any foreigner, when they could choose to have one with the most impeccable allegiance, loyalty and dedication as humanly thinkable?

An anchor-baby, with foreign influence, loyalty, persuasion and claim?

Or, a native-born to US citizen parents?

You keep saying that "native' and "natural" were "interchangeable", well it seems if that is true, then it is FOR SURE the Framers in the instance of Article II POTUS eligibility, did NOT intend for "natural" to mean merely "native".

"NATURAL BORN" MEANT BORN UNDER THE LIGEANCE OF A CITIZEN...... as you well know, it makes perfect sense, the framers would not have been so hap-hazard or derelict in their duty to protect the office of POTUS from foreign corruption.

Besides that, Vattel was a VERY BIG INFLUENCE in the framing period and when read in conjunction with the ECL, it makes perfect sense that the framers chose the TWO qualities as mentioned BOTH in ECL AND Vattel, i.e. native-birth AND the allegiance of citizen parents to make a "natural born Citizen", as Coke said "due by nature and birthright".

Two qualities, to make a pure a citizen as possible, jus soli and jus sanguinis.

You lose BrianH.

Learn to live with it.; October 19, 2012 at 12:29 AM
MichaelN said...: BrianH said...

@MichaelN

ECL = "Born under the ligeance of a subject" and in the realm, to be an English NBS

What's simple is that this "the child must be born under the ligeance of a subject" language you keep hauling out is not stated anywhere in WKA as you phrase it.

Michael, it's a poor way to structure an argument when you make it depend on language within Calvin's Case that the SCOTUS didn't bother to quote. I recall telling you that in July.

You're a slow learner.

Reply:

Justice Horace Gray cited to Calvin's case, this is sufficient for the meaning and original language to be applicable.

You are playing with words and have exhausted any credibility you might have had.

Justice Horace Gray in his "Opinion of the Court in the Wong Kim Ark case:

"This fundamental principle, with these qualifications or [p656] explanations of it, was clearly, though quaintly, stated in the leading case, known as Calvin's Case, or the Case of the Postnati, decided in 1608, after a hearing in the Exchequer Chamber before the Lord Chancellor and all the Judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin's Case, 7 Rep. 1, 4b-6a, 18a, 18b; Ellesmere on Postnati, 62-64; S.C., 2 Howell's State Trials, 559, 607, 613-617, 639, 640, 659, 679."

YOU LOSE AGAIN.

Learn to live with it.; October 19, 2012 at 12:34 AM
Mario Apuzzo, Esq. said...: BrianH,

Your point that the Government in Wong Kim Ark argued for Vattel’s rule does not prove that the English common law did not treat aliens in amity located in its territory as “subjects” of the King. The Government opted for Vattel because his rule was more logical and sound. Under his rule, in order to be born a “natural-born citizen,” the child’s parents had to be citizens de jure and not simply aliens treated as citizens de facto. In contradistinction, the English common law allowed the parents of a “natural born subject” to be aliens de jure which it treated as subjects de facto. With Vattel, if the parents were not actual citizens, the child could not be born a “natural-born citizen.” And only the nation decided who were its citizens, not an alien by simply coming physically into its territory. Under Vattel’s rule, an alien did not simply come into a nation’s territory and through no consent of the nation become in effect a citizen of that nation which is what the English common law allowed of its aliens in amity and their children born in the King’s dominion. Vattel explained that a nation had a better chance of survival and preservation by deciding who were its citizens and letting those citizens run the nation.; October 19, 2012 at 1:48 AM
Mario Apuzzo, Esq. said...: BrianH,

You asked me: “Why do you think the U.S. Government and the Dissent were arguing Vattel's rule ought to be applied? Answer: because the majority clearly wasn't reading into the ECL some "must be born to a subject which equals being born to a citizen." That's the Vattel notion. That's the losing proposition in WKA. And it's the side you're arguing.”

I am not arguing the losing side in U.S. v. Wong Kim Ark. In Section 212 of The Law of Nations, Vattel defined "citizens” and “natural-born citizens.” Note that Article II, Section 1, Clause 5 also includes “Citizen” and “natural born Citizen.” The issue in Wong Kim Ark was whether Wong was a “citizen,” not whether he was a “natural-born citizen.” The Court said he was a “citizen.” In so holding, the Court did not disturb Vattel’s definition of a “natural-born citizen” as adopted and made a part of American “common-law” per Minor v. Happersett. So, my position as to what a “natural born Citizen” is under American “common-law” was not changed by nor was it a losing proposition in Wong Kim Ark.; October 19, 2012 at 11:32 PM
Doublee said...: Based on the current trend, is there any reason to believe that Obama's eligibility will be adjudicated on the merits by any court?

The Supreme Court denied consideration of the Liberty Legal Foundation's petition without comment on October 4.

Has any lower court really addressed the eligibility issue with anything other than flawed reasoning?

I find it hard to believe that no judge so far has seen fit to treat the issue with sound reasoning. Not even a corrupt system is that perfect - or is it? There has to be someone, somewhere who will put integrity above expedience.

Read this post as a post from a frustrated citizen.; October 20, 2012 at 12:32 PM
Robert said...: Mario,

You offer a very key point - "Vattel explained that a nation had a better chance of survival and preservation by deciding who were its citizens and letting those citizens run the nation."

As opposed to British rule where the government was headed by a King who was determined by natural descent and who ruled over his subjects (AKA cannon fodder) with little real hindrance or consent, we have a system whereby the "citizens" are sovereign and the "government" is limited to certain enumerated responsibilities and operates only with the consent of the governed.

Now, how ridiculous would it be for a sovereign citizenship to accept all comers into the ruling class - the body of "citizens" - without some sort of security system in place to ensure loyalty and the preservation of the Constitution? Well, it would be as nonsensical as an English monarch being forced to accept anyone who wished to come into his home and family as his own child and as an heir to his throne.

As a matter of national security the founders required that the President (after those grandfathered) must be a citizen, born to citizens. Just like a Prince, he must be born in the country into the ruling family of "sovereign citizens". He must be born with the sole expectation that he will be completely loyal to the Constitution which, as President, he will be sworn to preserve, protect, and defend against ALL enemies, foreign and domestic.

Mr. Obama, even if he were to be occasionally loyal to this country, just doesn't qualify. He has stipulated that he was born under foreign allegiance via his British/Kenyan father. Therefor, he is not a natural born citizen of the United States of America as determined by our laws.; October 20, 2012 at 12:59 PM
Sheikh yer Bu'Tay said...: There are only two weeks left before the general election. Surely there has been ample time to make a decision on this. Why do they delay? Justice delayed is justice denied. When I was younger, it was impressed upon me our third branch of government was impartial. It would always be fair. There is nothing fair about this.

The Obama eligibility issue has proven to me our judicial system is not blind, it is not impartial, and it is not fair.; October 23, 2012 at 3:50 PM
BrianH said...: @MarioA

Your point that the Government in Wong Kim Ark argued for Vattel’s rule does not prove that the English common law did not treat aliens in amity located in its territory as “subjects” of the King.

But my point still holds that Mr. Wong was born of alien parents, and Justice Gray was thus adducing rules pertaining to the children of alien parents. Gray most certainly wasn't seeing in the ECL how these aliens were really more analogous to American citizens because of some oblique reference in Calvin's Case to them being 'subjects.' For him, the important point is that the ECL termed them "aliens."

As I've said to Michael, trying to re-analyze WKA by digging out passages from Calvin's Case that Gray didn't cite is a poor way to structure an argument.

And your current spin on WKA is disingenuous. Back on September 3 in response to Linda, you were quoting a source indicating that Vattel and Coke were fundamentally at odds:

"[f]or James Otis, who was as well read as any American in both the English common law and the European theories of natural law, the conflict became especially acute. His frantic attempts to reconcile the two laws—Coke with Vattel—formed the crisis of his life and helped to tear his mind to pieces. Because he knew English history and the common law too well, because he clung too stubbornly to the veracity of seventeenth-century notions of jurisprudence and parliamentary supremacy, he was eventually compelled to sacrifice Vattel for Coke, to deny natural reason for the sake of historical truth, and to miss the Revolution."

But with me, you know you're not going to be able to get away with this 'appealing to the ECL is a denial of the Revolution' posturing because you know I'll keep whacking you across the head with the portion from WKA where the Court says our Constitutional terms are to be understood by reference to ECL history. So now you're changing tack and trying to send the ECL off to the Swiss tailor and try to dress it up in more Vattel-looking garb. This warrants the yellow card being pulled for intellectual dishonesty.

The Government opted for Vattel because his rule was more logical and sound.

And the Government and Dissent opted for Vattel because they understood the Majority's reliance on the ECL made Wong a natural born citizen, and they didn't like that result!! If C.J. Fuller had thought merely that Vattel provided a clearer rationale to support the same idea, he would have written a concurrence rather than a dissent. But he wrote a dissent because he knew Vattel led to one conclusion, while the ECL led to another.

You cannot get away with this attempt to argue that the ECL gets you to the same result as Vattel.

In contradistinction, the English common law allowed the parents of a “natural born subject” to be aliens de jure which it treated as subjects de facto.

And, again, there's nothing in the WKA opinion to suggest in the least that Gray was seeing any "de facto subjects" notion when he was citing the ECL "rule" by which children of aliens were natural born subjects. You're trying to read into the analysis an extra layer that Gray didn't find, nor which would be something he'd be concerned to find given the case before him involved a child of alien parents.; October 26, 2012 at 10:44 AM
Mario Apuzzo, Esq. said...: BrianH,

You misunderstand how Justice Gray used the English common law history to arrive at his decision. In Wong Kim Ark, he used an English common law “natural born subject” to arrive at his holding that Wong was a “citizen of the United States” from the moment of birth under the Fourteenth Amendment. He only used English common law concepts regarding who were “natural born subjects” to find that Wong was a “citizen of the United States” from the moment of birth. He did not use those concepts to find that he was a “natural born Citizen.” Again, Wong needed to be a “citizen,” not a “natural born Citizen,” not to be deported, and the only question before the Court was whether Wong was a “citizen of the United States,” not whether he was a “natural born Citizen.” Justice Gray did not need to nor did he hold that Wong was a “natural born Citizen,” for the United States no longer used the broad allegiance doctrine of the English common law which treated aliens in amity as “subjects” of the King. In the United States, an alien in amity had to go through a formal legal naturalization process prescribed by Congress to become a “citizen” and Minor v. Happersett confirmed in 1875 that one had to be born to “citizen” parents to be a “natural born Citizen.” Still, Justice Gray found that being born in the U.S. to domiciled and resident alien parents was sufficient to make one born “subject to the jurisdiction” of the United States and therefore a “citizen of the United States” under the Fourteenth Amendment. But he did not hold that such birth circumstances gave anyone the status of a “natural born Citizen.”

Actually, Justice Gray in his decision distinguished the two classes of “citizens.” Justice Gray told us twice of this distinction. The first time he said: “The child of an alien, 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.' Page 22, note. This paper, without Mr. Binney's name, and with the note in a less complete form, and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Am. Law Reg. 193, 203, 204. ” Wong Kim Ark, at 665-66. Later in his opinion, Justice Gray, in speaking about a child born in the United States to alien parents again said that an alien’s “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.'” Id. at 694.

So, you are simply mistaken to conflate and confound a Fourteenth Amendment “citizen of the United States” with an Article II “natural born Citizen” and to argue the Wong Kim Ark defined or even redefined what a “natural born Citizen” is when it only addressed the definition of a “citizen of the United States” under the Fourteenth Amendment. The “natural born Citizen” clause was already defined by American “common-law” with which the Founders and Framers were familiar as explained by Minor. That definition has never been changed by any constitutional amendment or U.S. Supreme Court decision. That definition today is still a child born in the United States to U.S. “citizen” parents.; October 26, 2012 at 11:37 AM
Andy in Tampa said...: It is a little over a week to the election. Is there an update?; October 26, 2012 at 11:40 AM
BrianH said...: @MarioA

I am not arguing the losing side in U.S. v. Wong Kim Ark.

But you are. Your "two citizen parent" argument depends on "natural born citizen" being understood by reference to Vattel. The moment the WKA majority states our Constitutional terms (like NBC, which is cites to explicitly) are to be understood by reference to the ECL, your argument starts foundering. Because in summarizing the ECL, Gray phrases it in very un-Vattel terms: "therefore every child born in England of alien parents was a natural-born subject." And then Gray sinks the "two citizen parent" argument completely in the next sentence: "The same rule . . . continued to prevail under the Constitution as originally established."

The dissent argued Vattel's rule should have been applied. That's your argument. And it's the losing argument.; October 26, 2012 at 11:47 AM
Mario Apuzzo, Esq. said...: BrianH,

You fail to understand that you are conflating and confounding a Fourteenth Amendment "citizen of the United States" with an Article II "natural born Citizen." You fail to understand that Wong Kim Ark did not change the American "common-law" definition of an Article II "natural born Citizen" as confirmed by Minor v. Happersett in 1875 which is a child born in a country to parents who were “citizens” of that country when the child was born. Wong Kim Ark only defined a “citizen of the United States” from the moment of birth under the Fourteenth Amendment which is a different class of citizen than a “natural born Citizen.”; October 26, 2012 at 12:11 PM
BrianH said...: @MarioA

He only used English common law concepts regarding who were “natural born subjects” to find that Wong was a “citizen of the United States” from the moment of birth. He did not use those concepts to find that he was a “natural born Citizen.”

Here you miss the boat completely.

Again, he begins the analysis by observing the linguistic underpinning which the ECL forms to our Constitution:

"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."

"Citizen of the United States" is not language which finds reference in the ECL. Gray CANNOT POSSIBLY be purporting to look to the ECL's "natural born subject" language as a direct analogy to "citizen of the United States." There is no linguistic point of comparison between these terms. By contrast, the term "natural born citizen" DOES have a direct linguistic comparison to the ECL's "natural born subject" terminology. Those expressions are what Gray is comparing. This cannot be credibly denied.

Thus, since the "same rule" by which children born in England of alien parents were "natural born subjects" prevailed under our original Constitution, children born in the U.S. of alien parents were "natural born citizens." That same common law rule then was incorporated as the 14th Amendment's "born . . . in the United States, and subject to the jurisdiction thereor" provision. The common law rule (at least as to white persons) now being declared true as to all others, Mr. Wong is thus a "citizen" and cannot be refused entry to the country.

Your argument that Gray is comparing "natural born subject" to "citizen of the United States," and that he is NOT AT ALL comparing "natural born subject" to "natural born citizen" is ludicrous.; October 26, 2012 at 12:47 PM
BrianH said...: @MarioA

You fail to understand that you are conflating and confounding a Fourteenth Amendment "citizen of the United States" with an Article II "natural born Citizen."

Horace Gray and the WKA majority make abundantly clear that the common law rule as to "natural born citizen" was the "same rule" which had prevailed in England for 300 years by which children of alien parents were "natural born subjects" (noting the same special exceptions). Equally clear is Gray's conclusion that that common law rule was formally incorporated into the 14th Amendment's "born . . . in the U.S., and subject to the jurisdiction there" provision (same exceptions, adding also the special case of Native Americans).

I'm not conflating anything, since the 14th Amendment also includes as "citizens" those who are naturalized ("born or naturalized").

You fail to understand that Wong Kim Ark did not change the American "common-law" definition of an Article II "natural born Citizen" as confirmed by Minor v. Happersett in 1875 which is a child born in a country to parents who were “citizens” of that country when the child was born.

Minor didn't purport to "define" anything as to children of alien parents because the Minor case didn't present that question! As an attorney, you should know that. But we know you have to keep pretending otherwise for the sake of your loyal followers.; October 26, 2012 at 1:11 PM
Mario Apuzzo, Esq. said...: BrianH,

You can squirm all you want, but you cannot rewrite U.S. historical and legal history.

Article II, Section 1, Clause 5 uses the clause, “natural born Citizen,” not “born Citizen.” Wong Kim Ark had to decide whether Wong was a Fourteenth Amendment "citizen of the United States" from the moment of birth or what may be called a “born Citizen,” not whether he was a "natural born Citizen" which according to Minor is not defined by our Constitution. Minor looked to American "common-law" to define an Article II "natural born Citizen." Wong Kim Ark looked to the English common law to define a Fourteenth Amendment "citizen of the United States" from the moment of birth (“born Citizen”). End of story.; October 26, 2012 at 1:18 PM
Mario Apuzzo, Esq. said...: BrianH,

Yes, and Minor also did not tell us the size of Virginia Minor's shoes. Pathetic.; October 26, 2012 at 1:26 PM
BrianH said...: @MarioA

You can squirm all you want . . .

I have no reason to squirm.

I'm not the one here first claiming that Vattel and Coke were starkly incompatible choices ("he was eventually compelled to sacrifice Vattel for Coke, to deny natural reason for the sake of historical truth, and to miss the Revolution.") only to then on the next page have to try to make it look like the ECL was really just a less-artfully phrased, less direct concept that was in substance rather "Vattel-like." In your opposition to Obama it seems you're now channeling Mitt Romney: positions flip from one time to the next.

Article II, Section 1, Clause 5 uses the clause, “natural born Citizen,” not “born Citizen.”

Strawman. I've never asserted AIIS1C5 speaks of "born Citizen." It says "natural born citizen" which is why J. Gray then compares that term to "natural born subject." The phrase "natural born" appears in Gray's opinion more that 30 times. Clearly, in Gray's view the term "natural born citizen" is relevant to Mr. Wong and it is relevant to the meaning of the 14th Amendment as it pertains to Mr. Wong.

In your view of "the story" Gray might as well have just omitted all of that as needless.

. . .or what may be called a “born Citizen,”

Except that no one uses that term. Here, like with "alien subject" you have to resort to coining new expressions in order to force-fit the case into your pre-conceived framework.

not whether he was a "natural born Citizen"

Here again is why you'll never convince any judge in this land. No judge is going to buy your argument that Gray wasn't at all concerned with whether Mr. Wong was an NBC under the common law, when the opinion is replete with references to "natural born citizen" and "natural born subject," at times putting them side by side in direct analogical comparision (e.g., "the same rule" and Gray's citation to J. Swayne "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.") Every judge reading the WKA opinion will see this; your "but I just don't see it" argument is thus reduced to mere head-in-the-sand foolishness.

Wong Kim Ark looked to the English common law to define a Fourteenth Amendment "citizen of the United States" from the moment of birth (“born Citizen”).

You leave out the middle part where after looking to the ECL definition of "NBS," the Court states that the "same rule" was true of the ACL which pertained at the time of the original Consitution, the NBS/NBC comparision being undeniable.

End of story.

Unfortunately for you, no judge is going to read only your truncated version of the story. When they read the story in full, the label "without merit" quickly gets pinned to your "two citizen parent" argument.; October 26, 2012 at 4:14 PM
BrianH said...: @Robert

(To MarioA) You offer a very key point - "Vattel explained that a nation had a better chance of survival and preservation by deciding who were its citizens and letting those citizens run the nation."

And under our Constitutional system, only citizens are allowed to serve as President, V.P., or Senators/Congressmen.

As opposed to British rule where the government was headed by a King who was determined by natural descent ...

As a matter of national security the founders required that the President (after those grandfathered) must be a citizen, born to citizens. Just like a Prince, he must be born in the country into the ruling family of "sovereign citizens".

You just contradicted yourself.

Now, how ridiculous would it be for a sovereign citizenship to accept all comers into the ruling class - the body of "citizens" - without some sort of security system in place to ensure loyalty and the preservation of the Constitution?

We don't accept all comers. We require for the Presidency that the candidate have been born within the U.S., have attained 35 years of age, and have lived in the U.S. at least 14 years. We require candidates for Congress to have been citizens for a requisite number of years.

Now, what's ridiculous is the notion that "national security" requires the commander-in-chief to have been born in the U.S. to have been born of "citizen parents." Under that view, one arrives at the bizarre conclusion that the Framers believed a child born of one or more alien parents would forever be a "security threat." Yet a child whose parent(s) naturalized shortly before the child's birth was no longer a threat. But yet further the child born to a parent who is first naturalized shortly after the child's birth remains forever a security threat.

This requirement that the child have two citizen parents smacks more of absurd astrology-like notions that one's "allegial orbit" is fixed forever at the instant of birth according to the "citizenship position" of the "parental planets" at the moment the child slips through the birth canal.

Yes, one can just picture the Commander-in-Chief having to make a military decision against the interests of a nation to which one of his birth parents had connection. And, just at the moment of execution, by some mysterious inner force, he is suddenly rendered passive and confused on account of the "allegiance" that the "law of nature" imprinted upon his tiny brain as an infant, because his father was first naturalized a few weeks AFTER his birth.

Makes perfect sense. Oh, wait! This doesn't make sense at all. It's poppeycock.

I've pointed how absurd this is three times now. It's no surprise that no one on this Board has attempted in the least to defend this utterly nonsensical notion.

It's a grave insult to the Framers when Birthers ascribe to the Framers such a manifestly stupid view of the world. But it's not the Framers who were stupid. Just the Birthers.

This seems as good a point on which to wrap up things as any.

I doubt this time any future event will be reason to return. The Birther arguments are all dead corpses strewn along the field. Kicking them further is pointless.; October 26, 2012 at 4:52 PM
Mario Apuzzo, Esq. said...: BrianH,

You can keep repeating the same tripe over and over. It is nothing but your own spin on Wong Kim Ark. The historical and legal record is stacked against you. All the spinning cannot help you except if you are among your own kind.; October 26, 2012 at 6:02 PM