No, this is not true at all. We know for a fact that Pennsylvania explicitly rejected this idea in both their original constitution and also according to the report of the Pennsylvania Supreme court in 1808.
Posted on 02/05/2015 6:37:16 AM PST by wtd
Years ago the Supreme court put forth a famous and common sense doctrine regarding the interpretation of the Constitution. I don't remember the exact wording but it went something like this:
"The constitution may not be interpreted in such a manner as to render any part of it as having no effect."
The popular interpretation of article II "natural born citizen" does indeed render that part as having no effect, and is therefore a violation of this doctrine.
In this context it is. There are those that says if descends from British Common Law which argued those born on the King's land owe a "natural and perpetual allegiance" to the King.
There are those out there who disregard the fact that this is completely inconsistent with a nation that as their first act of existence, explicitly rejected the premise that they must have a perpetual allegiance to a King.
The very document which created US Citizenship cites "the laws of nature and of nature's God" in explaining why they don't have to have a perpetual allegiance to a king.
The other side (my side) argues that US Citizenship is based on the concept of "natural law" as articulated by Natural law philosophers such as Locke and Vattel.
Even more strongly supporting the assertion that Vattel is the basis of our citizenship is the fact that no other writer on natural law articulated the right to throw off the yoke of Monarchy. Only Vattel (writing from the only Non-Monarchy in the world) assets that people have a right to be independent and form whatever government they so choose.
Even many of those who insist our citizenship is based on English Common law (with it's perpetual allegiance to the King requirement) acknowledge that our Declaration of Independence was heavily based on the writings and principles put forth by Emerich de Vattel.
So yeah, the meaning of the word "natural" is disputed within the context of US Citizenship.
As if a cow could give birth to a chicken.
It is not normally necessary to point out the obvious.
No, this is not true at all. We know for a fact that Pennsylvania explicitly rejected this idea in both their original constitution and also according to the report of the Pennsylvania Supreme court in 1808.
No, it's quite reasonable. Have you ever heard of a child who was "Adopted" without the affirmative consent of a family?
Can someone become a member of a family simply because they are born on family property? No, the characteristic of membership in a family can only be conveyed by deliberate intent, not by negligent acquiescence.
Grabbing the children of anyone born in your country makes perfect sense for the Monarchy of an Island nation, (where they become the King's "subjects" i.e. "Servants.") but it is utter nonsense for a Republic.
Indeed, note what sorts of problems are currently being caused by the millions of "anchor babies" and "birth tourists" we are now dealing with. These people have no allegiance to this nation, and it only by a quirky technicality of what is erroneously believed to be our law, that they are even regarded as citizens at all.
The notion of "Precedent" is itself a Judicial version of the old "Tu quoque" fallacy. Courts are far more willing to follow the bad decisions of previous courts than the are to look at first principles and work out the meaning of the law for themselves. Somehow this flawed methodology has become enshrined in the church of the black robes.
You want to talk about legal ideas that are contradicted by much of our History? How about the many thousands of children born to Loyalists after July 4,1776 that were recognized by both our Government and that of the British as British Subjects? How about the hundreds of millions of slaves born in the US but who did not have US Citizenship until the 14th amendment? How about the Indians born in the US but who did not acquire citizenship until 1924?
There are hundreds of millions of exceptions to the theory that being born here makes you a citizen. There are probably more exceptions than there are citizens who were created by being born to non-American citizen parents in this nation.
If you want to look at contradictions with history, the bulk of the contradictions are on the side that says being born here to non-American citizen parents makes you a citizen. In the vast majority of the examples, this is not at all true.
Yes, let us please heed the lessons in law that History teaches us.
You can't "further define" Natural law through a man made act. You can only recognize it, not modify it.
It is like saying that congress can pass a law granting citizenship to anyone born of Chinese Parents (which they theoretically can, but which would be politically impossible) is a "natural born citizen", but it would not make it true.
"Natural born citizen" cannot be re-defined by the whim of congress. God help us if the meaning of Constitutional terms could be re-defined according to the whim of Congress.
We are already seeing Judges attempting to do this, but we always knew that Judges are mini-Tyrants.
One does not have to define "parents" when it comes to citizenship as it is axiomatic that a "citizen" cannot exist without parents. No one is "parentless." Your point is as if you asserted that "arms" doesn't presuppose the existence of bullets. The founders had no interest in wasting their time on things which are obvious.
And for the second part of your statement, that is also not true. Pennsylvania did indeed explicitly acknowledge their understanding that citizenship in their state was not based on English common law.
If Congress was to pass a bill and a president signed it into law or if the Supreme Court was to rule that two U.S. citizen parents are required in order to be a natural born citizen, I would be supportive, but that is not the case at this time.
The constitution cannot be amended by congress passing a bill and the president signing it.
I’ve no interest in you jumping in and taking me out of context - so unless you can offer me a single conservative legal scholar who agrees with you, please do not bore me.
After all, what would Cruz know for example. Not like he has a Constitutional Law background or anything - ....oh, wait.........
Judges with lifetime appointments don’t have to care what anyone thinks of them. That was the whole point of the lifetime appointment.
My understanding is that Louisiana, basing its law on the Napoleonic Code was the only original state that didn’t base its law ( to some degree) on English Common Law.
Reception statute of Pennsylvania, 1777:
[[section]]1. “Each and every one of the laws or acts of general assembly, that were in force and binding on the inhabitants of thde said province on the 14th day of May last, shall be in force and binding on the inhabitants of this state, from and after the 10th day of February next, as fully and effectually, to all intents and purposes, as if the said laws, and each of them, had been made or enacted by this general assembly . . . . and the common law and such of the statute laws of England, as have heretofore been in force in the said province, except as hereafter excepted.
http://famguardian.org/publications/propertyrights/Precept.html
American common law
The United States and most Commonwealth countries are heirs to the common law legal tradition of English law. Certain practices traditionally allowed under English common law were expressly outlawed by the Constitution, such as bills of attainder and general search warrants.
As common law courts, U.S. courts have inherited the principle of stare decisis. American judges, like common law judges elsewhere, not only apply the law, they also make the law, to the extent that their decisions in the cases before them become precedent for decisions in future cases.
The actual substance of English law was formally “received” into the United States in several ways. First, all U.S. states except Louisiana have enacted “reception statutes” which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions. Some reception statutes impose a specific cutoff date for reception, such as the date of a colony’s founding, while others are deliberately vague. Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form, such as the heightened duty of care traditionally imposed upon common carriers.
Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S. states. Two examples that many lawyers will recognize are the Statute of Frauds (still widely known in the U.S. by that name) and the Statute of 13 Elizabeth (the ancestor of the Uniform Fraudulent Transfer Act). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants.
However, it is important to understand that despite the presence of reception statutes, much of contemporary American common law has diverged significantly from English common law. The reason is that although the courts of the various Commonwealth nations are often influenced by each other’s rulings, American courts rarely follow post-Revolution Commonwealth rulings unless there is no American ruling on point, the facts and law at issue are nearly identical, and the reasoning is strongly persuasive.
Early on, American courts, even after the Revolution, often did cite contemporary English cases. This was because appellate decisions from many American courts were not regularly reported until the mid-19th century; lawyers and judges, as creatures of habit, used English legal materials to fill the gap. But citations to English decisions gradually disappeared during the 19th century as American courts developed their own principles to resolve the legal problems of the American people. The number of published volumes of American reports soared from eighteen in 1810 to over 8,000 by 1910. By 1879 one of the delegates to the California constitutional convention was already complaining: “Now, when we require them to state the reasons for a decision, we do not mean they shall write a hundred pages of detail. We [do] not mean that they shall include the small cases, and impose on the country all this fine judicial literature, for the Lord knows we have got enough of that already.”
Today, in the words of Stanford law professor Lawrence Friedman: “American cases rarely cite foreign materials. Courts occasionally cite a British classic or two, a famous old case, or a nod to Blackstone; but current British law almost never gets any mention.” Foreign law has never been cited as binding precedent, but as a reflection of the shared values of Anglo-American civilization or even Western civilization in general.—Wikipedia
“The constitution cannot be amended by congress passing a bill and the president signing it.”
No one posting here said that it could be amended in that manner.
There are several conservative legal scholars that agree with me, but it has been so long since I argued this topic that I am having trouble remembering their names.
I did finally remember this one because he reminded me of "Eastman Kodak", and so it was a bit of a memory aid. At one point I posted a very large list of Conservative scholars that agreed with me here at Free Republic. Finding it now is problematic.
-John C. Eastman, Ph.D., is Professor of Law at Chapman University School of Law and Director of The Claremont Institute Center for Constitutional Jurisprudence.
From Feudalism to Consent : Rethinking Birthright Citizenship
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After all, what would Cruz know for example. Not like he has a Constitutional Law background or anything -
I hear this a lot, and this assertion operates under the faulty assumption that someone who studies the constitution must have a done extensive studies on this tiny little clause that is for the vast majority of the time, of little interest compared to the larger body of the document.
A more plausible explanation is that they are just told some professor's opinion on it, and never bother looking any deeper, content in the assumption that what is regarded as precedent is in fact correct.
The assumption at the time was that by not being required to please the people, they could be objective. It overlooked the fact that Judges may not have to please the voters, but they have every reason for wishing to please their own social circles, and their own political preferences. To argue that the courts are "objective" is just laughable. They are completely politicized.
Beyond that, Thomas Jefferson's arguments on the tyranny of the Judiciary are spot on. I'm wondering how much better the US Constitution might have been if only he had been a Delegate instead of Ambassador to France at the time.
From the article:
The idea of judicial review is thoroughly un-American. As Jefferson also pointed out, judges are not morally superior to anyone else, having “with others the same passions for party, for power, and the privilege of their corps.” Despite this, he wrote in his letter to Roane, while we’re meant to have “three departments, co-ordinate and independent, that they might check and balance one another,” judicial review has given “to one of them alone, the right to prescribe rules for the government of the others”; moreover, he continued, this power was given to the very branch that “is unelected by, and independent of the nation.” Jefferson then warned that this has made the Constitution “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.” And our country is being twisted along with it as patriots twist in the wind.
Given that most legal matters were utterly mundane, this is mostly true. The vast bulk of routine legal matters conducting in the United States were based on English Common law, but this is not the same thing as establishing a wholesale adoption of English common law in all it's particulars.
Where English common law explicitly conflicted with the Principles of US Governance, it was unceremoniously tossed out. James Madison himself made this point in his letter to George Washington.
Since the Revolution every State has made great inroads & with great propriety in many instances on this monarchical code. The "revisal of the laws" by a Committe[e] of wch. Col. Mason was a member, though not an acting one, abounds with such innovations. The abolition of the right of primogeniture, which I am sure Col. Mason does not disapprove, falls under this head. What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution.
I can think of no more blatant example in which English law and American Principles are in a higher state of contradiction than in the distinction between English Subjects and American citizens. The creation of American citizenship (by the Declaration of Independence) is a fundamental rejection of the principles governing subjects.
English common law does not allow "subjects" to revoke their subjugation, so it is blatantly obvious to me that our citizenship is distinctly different from their status and it's embodiment of perpetual allegiance as a foundational doctrine.
Therefor it is silly to believe that our citizenship would follow their rules for making their subjects.
In Pennsylvania (Where the Constitution was written) they clearly articulated that they didn't.
Writing the Constitution, adopting the Constitution, amending the Constitution and interpreting the Constitution were/are all “man-made acts.”
All statutory law, treaties, case law, and federal regulations that haven’t been explicitedly ruled to be unconstituional exist under the Constitution. That includes recognizing who is and who is not a natural born citizen.
Saying that congress could create new "natural born citizens" by passing a bill and getting the president to sign it is the same thing as saying the constitution can be amended by statute.
Congress has an acknowledged power of naturalization, but naturalized and natural born are distinctly different. Congress can't make "natural born", they only have the power to make "naturalized."
But none of that makes babies, which are natural acts. No amount of scribbling and proclaiming alters nature.
A cow begats a calf, not a chicken. Acts of man proclaiming otherwise are of no effect. They can redefine words, but they can't redefine nature.
All statutory law, treaties, case law, and federal regulations that haven’t been explicitedly ruled to be unconstituional exist under the Constitution.
Which is inferior to and the subsequent product of, the Declaration. The Constitution is but merely the third governing document of our Nation. The founding document was the first, and it cites nature and God as it's authority. According to the understanding of the time, there was no higher power.
That includes recognizing who is and who is not a natural born citizen.
Which is just as valid as deciding which cows will have chickens. Man made laws do not decide such things.
Thanks for bringing a name into it - I’ll look it up. But I do think you’re “over selling” Eastman and “under selling” Cruz. But you at least answered the question.
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