Posted on 05/19/2010 12:12:23 PM PDT by patlin
quotes and links to founding era documents stating this as fact please
The most basic principle of citizenship under common law is that someone born within the nation's borders is, at birth, a citizen.
No the most basic principle is that one must be born in the territory to parents who are citizens. You quote feudal law made by man. May I suggest you go and read the declaration & the Constitution again. We have laws based on God's law which is the law of nature which is the law of nations.
When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. — Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government.
Did you read anywhere in my essay that I said only an Obama supporter would challenge my position?
Does not common sense tell us that anyone who argues a legal position that supports Obama’s eligibility is also in effect supporting him? We surely cannot say the opposite. And we surely cannot say that the person is neutral. So what is your point?
Your statement about “[m]uch of American law” deriving from English common law adds nothing to addressing the real issue which is did the Framers mean to have national citizenship derive from English common law? Do not tell me about English common law in the States and all that sort of stuff. Address national citizenship.
Your statement about how English common law has been modified also adds nothing. Many of us know that and so what.
Your final opinion about the “most basic principle of citizenship” is just that. Your opinion. You have every right to an opinion. But you are just simply repeating a sound bite without providing any legal support for your position. Moreover, what controls Obama’s eligibility is the correct definition of an Article II “natural born Citizen” not a “citizen.” You are not even addressing the correct issue.
As far as the courts go, we just do not know until we get there.
bump
Ping!
Tell that to Founder George Mason. He more or less walked out on the Convention and refused to put his hand to the Constitution, because he literally said it overturned the common law. If it overturned the common law, in the mind of one as learned as Mason, then it did.
Mason suffered a lengthy and painful rift with old friend and neighbor George Washington over this matter. Madison attempted to be a go-between to heal the rift. Mason was held in very high regard in that era, as among the best minds present.
This effort to, what, placate Mason did lead to the immediate amendment of the Constitution to include a Bill of Rights, modelled after Mason's own efforts for his native State of Virginia, on the upside.
To the extent that the English common law is embodied at all at the Federal level, you have Mason, Madison and the Bill of Rights to thank for it. It existed nowhere else in the Constitution, and that extends to any definition of citizenship, natural-born or otherwise.
This is a good article by Mario on the “both parent” requirement for the meaning of “natural born citizen” that seems to face challenges from Obots from time to time. It’s worth the read —
http://puzo1.blogspot.com/2009/09/natural-born-citizen-clause-requires.html
An Article II “natural born Citizen” Is Not the Same...
I have the highest respect for you and your work, but may I modestly suggest (not being a lawyer) that WKA did NOT totally equate NBC and NBS.
Note that in your quote from WKA the Court only equates citizen and subject “to a degree” which is a limitation. The limited equality that WKA specifically cites is not POTUS eligibility (for which there is no common law equivalent) but rather “for we are equally bound by allegiance and subjection to the government and law of the land”:
“‘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.’ Id. 258, note.” United States v. Wong Kim Ark, 169 U.S. 649, 664-65 (1898).
WKA states up front that the issue to be decided is whether Wong is a citizen and explicitly states that it will not reach a conclusion as to whether Wong is NBC.
My take is that the entire discussion of common law and Blackstone in WKA is for the sole purpose of informing a ruling as to whether Wong is born a citizen, not whether Wong is NBC eligible to be POTUS.
In my view your quote from WKA only affirms that both citizens and subjects “are equally bound by allegiance and subjection to the government and law of the land”. Neither your quote nor anything in the WKA decision affirms that such limited equality, limited “in a degree” as the Court said, can equate NBS rights with the separate and distinct NBC POTUS eligibility requirement identified by John Jay.
There is no concept of POTUS in common law in relation to a subject so there can be no equivalence or historic analogy between subject and citizen regarding NBC eligibility.
My take is that WKA was correctly decided and affirmed only that Wong was a citizen, not a NBC.
"The English common law did not distinguish between a “natural born subject” and a naturalized subject. "The English common law provided that an alien naturalized is “to all intents and purposes a natural born subject.” Co. Litt. 129 (quoted and cited in United States v. Rhodes, 27 F.Cass. 785, 790 (1866).). Under English common law, once a person became naturalized, he or she was deemed to be a “natural born subject.” Hence, under English common law a naturalized citizen was considered a “natural born subject.” Hence, giving the “natural born Citizen” clause the same meaning as a “natural born subject” would have allowed a naturalized citizen to be eligible to be President of the new Republic."
Naturalized citizens in the U.S. are NOT for all intents and purposes "Natural Born Citizens" but are, of course "citizens." Clearly, there is a difference and the framers were obviously aware of that.
I have to respectfully disagree with your position that WKA was a citizen at birth. Allegiance in a free society is not something acquired by the soil or government, it is acquired through descent aka inherited according to natural law. That and the much ignored Chinese Exclusion Act which was completely constitutional in the fact that Congress had complete jurisdiction over who could & who could not become a naturalized person. The framers in the Declaration of Independence were very forth coming that the new country's laws were those of nature, not of the feudal government of England. They threw those out the window and started a new soceity based on the natural laws for a moral & free soceity. The only laws that were befitting to a Republican form of government.
Regarding the issue of NBC, the obama supporters take a quote from Fuller's dissenting opinion to make that argument.
LG - just in case you want one more discussion about the definition of a natural born citizen, this one is very good.
This statement does not seem correct. The founders appear to have looked to common law and the meaning of “subject” for a baseline definition of citizenship and to have regarded soil birth to be so important that there is near universal agreement currently (on the legal left,right and center) that the founders specified soil birth in the USA as a minimum NBC requirement for POTUS eligibility. That is, unless you are the child of a serving military person, as McCain was, in which case you get to be not only a citizen but NBC under your definition despite published State Department Regs to the contrary saying that babies born on foreign military bases weren't automatic US citizens.
Your definition, above, would imply that foreign born children of two US citizens would have always been assumed to be US citizens by blood at birth, but it is only recently that US law was changed to make the foreign born children of US citizens automatic citizens without need of naturalization and residency requirements for the parents and child.
Again, I respectfully disagree. When researching and studying the works of the founders & framers, Blackstone nor the feudal common law was not on the top of their list of those to emulate. They considered it repugnant to a free society & Republican form of government. They studied natural law & the philosophers of the enlightenment. Check it out for yourself: http://www.archive.org/stream/educationofthefo028335mbp#page/n7/mode/2up
James Wilson, who was only 2nd to Madison in the congress & who along with Franklin, wrote the Declaration. Those documents are in his pen.
More James Wilson. From the ‘Green Bag’ (1907)
On August 7, 1790, the trustees of the College of Philadelphia, afterwards the University of Pennsylvania, as the result of the suggestion of Charles Smith, Esq., son of the Provost, and formerly a student in James Wilson s law office, appointed a committee of three, of which Wilson was one, to consider the propriety of establish ing a law professorship, and one week later they submitted an outline plan, prepared by Wilson, for a course of law lectures. It is still preserved among the Wilson papers in the Historical Society of Pennsylvania. It is so clear and so applicable to present day conditions that we here reproduce the essential portions:
“The object of a system of law lectures in this country should be to explain the Constitution of the United States, its parts, its powers, and distribution, and the opera tion of those powers; to ascertain the merits of that Constitution by comparing it with the constitutions of other states, with the general principles of government, and with the rights of man; to point out the spirit, the design, and the probable effects of the laws and treaties of the United States; to mark particularly and distinctly the rules and decisions of the federal courts in matters both of law and practice.
“To examine legally, critically, and historically the constitutions and laws of the several states in the Union; to compare those constitutions and laws with one another, and with the general rules of law and government; to investigate the nature, the properties, and the extent of that connection which subsists between the federal government and the several states, and, of consequence, between each of the states and all the others.
“To illustrate the genius, the elements, the origin, and the rules of the common law, in its theory and in its practice; to trace as far as possible that law to its fountains, to the laws and customs of the Normans, the Saxons, the Britons, the ancient Germans, the Romans, and perhaps in some instances the Grecians.
“Under this head it is to be observed,that the common law, in its true extent, includes the law of nations, the civil law, the maritime law, the law-merchant, and the law, too, of each particular country, in all cases in which those laws are peculiarly applicable. All the foregoing subjects of discussion should be contrasted with the practice and institutions ef other countries. They should be fortified by reasons, by examples, and by authorities; and they should be weighed and appreciated by the precepts of natural and revealed law.”
The proposed law course was established to consist of twenty-four lectures per annum, the fees to be paid by each pupil not to exceed ten guineas, and James Wilson on the 1 7th of August, 1790, was unanimously elected by the trustees by ballot to the chair created, and thus became the first , professor of law in America. The initial lecture was delivered on the isth of Decem ber, 1790, in the presence of President Washington and many distinguished guests, including his cabinet, members of Congress, the judges of the national and state courts, and the executives, as well as legislative bodies, of both Pennsylvania and Philadel phia. At the conclusion of the lecture, the degree of LL.D. was conferred upon him. Many ladies were present, among them Mrs. Washington and Mrs. Alexander Hamilton, and Wilson alluding to the ladies, facetiously remarked that he had never before addressed such “a fair audience.” Invitations had been issued by Mr. Justice Wilson for he was then senior Justice of the Supreme Court of the United States - to the President and his Cabinet, the mem bers of Congress, etc., etc., and the Penn sylvania. Colonial Records show that the Supreme Executive Council of Pennsyl vania formally resolved to attend in a body. The lectures are included in Wilson s Works, a second edition of which was published in 1896 by James DeWitt Andrews, LL.D., who so truly says in his introductory note:
“Would you trace the history of popular governments, you will find the whole out line traced by the master hand of Wilson in these lectures, prepared especially to instruct the American student as to the difference between the institutions which had before existed and the political system of law and government which exists in the United States. ... In one respect Wilson s Works are remarkable. It is in this: each funda mental principle is in every instance traced to its source, whether it shall be a principle enunciated by Socrates, Aristotle, Cicero, Gaius, Puffendorf, Locke, Grotius or Hobbes, Descartes or Hume, Vattel or Domat, who may have written upon some proposition or problem of the law or government.”
There is no clearer or more satisfactory exposition anywhere of the basic principles of our system of jurisprudence and government than Wilson enunciated in these lectures and in the luminous arguments concerning the Constitution, which have iertunately been preserved to posterity, and which as the years go on, and Wilson s real worth becomes fully appreciated, are destined to be held in the highest esteem.
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From Justice James Wilson commentaries on law, 1791:
By Sir \William Blackstone, from whose Commentaries, a performance in many respects highly valuable, the elements of a foreign law education would probably be borrowed—by Sir William Blackstone,. this great and fundamental principle is treated as a political chimera, existing only in the minds of some theorists-; but, in practice, inconsistent with the dispensation of any government upon earth...
As I have mentioned Sir William Blackstone, let me speak of him explicitly as it becomes me. I cannot consider him as a zealous friend of republicanism. One of his survivers or successours in office has characterized him by the appellation of an antirepublican lawyer. On the subject of government, I think I can plainly discover his jealousies and his attachments.
For his jealousies, an easy and natural account may be given. In England, only one specimen of a commonwealth has been exhibited to publick examination ; and that specimen was, indeed, an unfavourable one. On trial, it was found to be unsound and unsatisfactory. It is not very surprising that an English lawyer, with an example so inauspicious before his eyes, should feel a degree of aversion, latent, yet strong* to a republican government...
As author of the Commentaries, he possessed uncommon merit. His manner is clear and methodical; his sentiments—I speak of them generally—are judicious and solid ; his language is elegant and pure. In publick law, however, he should be consulted with a cautious prudence. But, even in publick law, his principles, when they are not proper objects of imitation, will furnish excellent materials of contrast. On every account, therefore, he should be read and studied. He deserves to be much admired ; but he ought not to be implicitly followed.
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Dictum in 8 Peters’ Reports, 658 : “ It is clear there can be no common law of the United States. When, therefore, a common law right is asserted, we must look to the state in which the controversy originated.”
Dictum, 1 Blackford, 205 : “The common law of England is not in the United States, as a federal government.”
There is no rule of law in the United States, by which it is laid down that the form, structure and organization of the government of the United States is to be interpreted by the principles of the common law of England. That portion of the common law which related to the form of government of England was expressly set at defiance in the declaration of independence.
The principles of the government were founded in pure reason which was the immutable, eternal and universal law of mankind. On this same rule are founded the principles of international law which govern the intercourse between independent societies and involved in the question of intercourse is that of expatriation. “ Our knowledge of international law is not taken from the municipal code of England, but from actual reason and justice, and from writers of known wisdom, and they are all opposed to the doctrine of perpetual allegiance.” 9 Op. Atly-Genl. 356.
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I would welcome historical evidence from the founding era, as I have provided here, evidence from the words of the founders that supports your conclusion.
You are confusing citizen for natural born citizen. NBC is simply one path to citizenship. The recent laws that automatically make US citizens of children born abroad changes nothing in their status. They are still citizens by an act of congress and therefore they are not natural born.
“I would welcome historical evidence from the founding era, as I have provided here, evidence from the words of the founders that supports your conclusion.”
The founders read and adopted the views of Vattel, from what I have read, and they associated birth on the soil of the country combined with two citizen parents (usually primarily the father) with the highest form of allegiance.
You said that allegiance is not acquired by the soil and I see nothing in your long quotes that supports that.
I am not feeling well tonight (CFS) and can't write much more. Perhaps I have read the WKA dicta referencing common law and Blackstone once too often, but I think we are on the same side here in concluding that Obama would likely not be NBC if his legal father is a non-citizen at his birth or if he was born in Kenya. You might not agree with me that if Obama’s mom was legally single and he was born in HI, he might be NBC with unitary US citizenship.
This is where much contention comes into the debate as Vattel merely pulled together & clarified all the laws of nature that had already been written by Cicero, Grotius, Puffendorf, Aristotle, Locke, Hobbes, Hume, Domat, etc. Vattel took the works of all those great men of the enlightenment and brought them together. Most founders & framers, but especially those with higher influence in the drafting such as Wilson, studied ALL of them and had great knowledge of the laws of nature well before Vattel’s edition of the Laws of Nations even came into their possession either in scholastic studies or their personal studies of natural law leading up to the Declaration of Independence because Natural Law was the only law that was suitable for a Religious & Moral Republic. Wilson covers all these great philosophers and their influences in his 1st volume as well as the importance of morality & patriotism.
but I think we are on the same side here in concluding that Obama would likely not be NBC if his legal father is a non-citizen at his birth or if he was born in Kenya.
Sorry to hear you are not feeling well and please don't take my responses as any sort of attack. I know we are on the same side. It's just that I just have done extensive research into this and thus am passionate about getting the record corrected about our history and the foundation of American Law. Might I suggest you read the opinion of Elk v Wilkins ( http://supreme.justia.com/us/112/94/case.html ) written by Gray in 1884 in which Gray held that the phrase ‘subject to the jurisdiction’ meant something more than being born on soil as it pertains to allegiance. This holding in Elk written by Gray, upheld the Dicta in the Slaughterhouse case( http://supreme.justia.com/us/83/36/case.html ) therefore declaring the 14th Amendment to be constitutional. An opinion in which Gray held that the US did not adopt the feudal English common law definition of natural born subject as the definition of US citizen. The reread the rambling and sometimes incoherent opinion in WKA and try to make sense of it. Finally, we have the fact that instead of recusing himself in a later(after WKA)case in which he would personally gain financially from, Gray hid the personal impication of that decision and remained on the bench during the case and voted in favor, therefore sealing his future fortune. This case was later overturned and has remained overturned since.
Leo made a big point out of the fact that Gray was appointed by Chester Arthur and Leo felt that Gray's peculiar change from the Elk case to the Ark case that you pointed out may have been made to lock in citizenship for Arthur who, though born on US soil, had a UK citizen father at birth. Now you are pointing out further evidence that Gray was unscrupulous. Interesting.
Rightly or wrongly, SCOTUS did decide that WKA was at least a citizen based on soil (subject to the jurisdiction of) while explicitly saying they didn't reach the issue of whether he was NBC. The Arkeny Court admitted that even as they seized on the “guidance” in WKA to pronounce Obama to be NBC without proper discovery and with a different fact pattern of sufficiently less US jurisdiction over Obama Sr.
To convince SCOTUS that Obama is not NBC, he must then not only prevail on the facts (the founders intentions) but must overturn the semi-precedent (widely assumed as precedent) of the conceded WKA dicta equating NBC and NBS. With Obama as sitting president, that seems improbable to achieve.
I believe that only a claim by Mario that WKA did NOT equate NBC with NBS and the Court only looked to NBS to inform it of Ark's status as a citizen will have a chance. I also believe this to be true. Just my non-lawyer impression.
Going to have to reread it because I took it different. If something is amiss in the article, it should be brought to his attention. Mario has never been shy about correcting errors, he has always welcomed feed back.
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