Official Notice of Dispute challenges 4 candidates' NH eligibility (Cruz, Jindal, Rubio, Santorum)

The Post & Email ^ | 11/13/2015 | Robert Laity

[ScottWalkerForPresident2016]

I wish to NOTIFY you that the bona-fides of four Republican Candidates to be President is hereby DISPUTED. It is claimed that the following persons do NOT meet the United States Constitutional requirement that one be a "Natural-Born Citizen" in order to be President under Article II, Sec. 1.

I am disputing the bona-fides of:

Marco Rubio - NOT an NBC. He was born in the U.S., however his parents were un-naturalized "permanent resident" Cuban citizens when he was born.

Ted Cruz - NOT an NBC. He was born in Canada to a Cuban father and American mother who may have natualized as a Canadian.

Bobby Jindal - NOT an NBC. He was born in the U.S. to parents who were un-naturalized citizens of Indiaa at the time of Bobby Jindal's bitth.

Rick Santorum - NOT an NBC. He was born in the U.S. to a father who was an Italian citizen not naturalized at the time of Rick Santorum's birth.

[Tau Food]

The English "common law" is the unwritten law.

The term common law does not mean unwritten law. The common law is the non statutory law developed over time by court decisions. Much of English law (e.g., the law of property, torts, contracts and criminal law) was developed not by Parliament but by courts deciding one case at a time. Many of those opinions were written and served as precedent for use by courts deciding subsequent cases which concerned the same issue.

I will give you a famous example of how the common law developed. This famous case in the law of contracts is Hadley v. Baxendale decided in 1854. The facts of the case are fairly simple. The plaintiff owned a mill which required a crank shaft to operate. The crank shaft broke and the plaintiff sent the broken crank shaft to the defendant so that the defendant could make a new one just like it. The plaintiff's employee told the defendant that work at the mill was stopped because they lacked the needed crank shaft. Through some screw up the delivery of the new crank shaft was delayed. As a result, the plaintiff was delayed in reopening the mill and because of the additional down time the plaintiff lost additional profits from the delay.

The plaintiff sued the defendant and a jury awarded the plaintiff 25 pounds. The defendant appealed, claiming that even if the defendant breached the contract, the defendant should not be held liable for the plaintiff's lost profits because the damages were "too remote." So the question on appeal was what should be the proper measure of damages for a breach of contract? What will happen if we allow plaintiffs to recover lost profits in these kinds of cases? How will people in the position of the defendant be able to evaluate the risk of a breach of contract on his part if he has no idea how much might be his liability for a possible breach? Under those circumstances, how can crank shaft maker do business if he has absolutely no idea how much he might owe if there is a screw up? These are the policy questions that the court on appeal had to consider when creating a rule.

The important thing to notice is that the court itself is developing a rule here regarding the proper amount of damages for breach of a contract. The court is not relying upon a statute because there apparently was no statute that answered that question. Notice that it is the court that is creating this rule:

"Now we think the proper rule in such a case as the present is this:" and then the court announces this new rule.

This opinion was in writing and future courts deciding cases containing the same basic issue would be expected to follow that rule. In other words, the case became a precedent which could be relied upon by manufacturers, purchasers of new equipment and judges.

This case is an example of how most of the English laws on property, torts, contracts, etc. were developed. Laws created by courts in this matter are known as case law. It is the entire body of this case law that is known as the English common law (judge-made law).

The English common law is written. It was written by courts one case at a time. The rule in Hadley v. Baxendale regarding the proper measure of damages in the event of a breach of contract is still being taught to law students today in American law schools. It is a famous part of the English common law.

[okie01]

In 1868 how did you determine if someone was in the country legally or illegally?

My wife is a geneaologist. Birth certificates, marriage licenses, election registrations, death certificates and other means of identification were regularly issued from Day One.

The originals were usually maintained at the county court house, but handwritten copies were provided to the individuals for signature (usually achieved with a "mark", as many folks didn't now how to write).

I believe we have Benjamin Franklin to thank for this procedure. He was the first county clerk.

[DoodleDawg]

But that didn’t answer my question. How did you determine if an immigrant was legal or illegal? If the definition of “jurisdiction” depended on that then didn’t they have to have a way?

[okie01]

If the definition of “jurisdiction” depended on that then didn’t they have to have a way?

Even in 1868, most U.S. citizens had some form of identification. An illegal wouldn't.

[DoodleDawg]

Even in 1868, most U.S. citizens had some form of identification. An illegal wouldn't.

Like what?

[DiogenesLamp]

Much of English law (e.g., the law of property, torts, contracts and criminal law) was developed not by Parliament but by courts deciding one case at a time.

So you grasp the fact that there is no "natural born" statute?

[DiogenesLamp]

The term common law does not mean unwritten law.

Oh, and for rebuttal to this point, I give you James Madison. You may have heard of him.

What can he mean by saying that the Common law is not secured by the new constitution, though it has been adopted by the State Constitutions. The common law is nothing more than the unwritten law, and is left by all the constitutions equally liable to legislative alterations.

[Tau Food]

I have no idea whether there has ever been a statute defining the term natural born. If such a statute existed at or about the time that the Constitution, then that fact might be relevant to an effort to determine what the Founders meant by natural born citizen. I guess that would depend on the context.

Do you know if there was such a statute then? Believe me, I would be open to a convincing argument that the Founders must have meant something more specific than what they said in the Constitution that they meant.

I really rather suspect that none of them thought it important enough to be more specific. They were dealing with some very important issues in that document. There were some big compromises on the table and while I think that their provision regarding natural born citizen indicated that they wanted there to be some significant connection between a president and this country, I am not sure how much time they spent on the details of that connection. I forgive them if they were distracted by other issues like what to do about slavery, how to protect small states from being dominated by big states, how to balance the powers between the national legislature, the courts and the executive branch, etc.

Our job is to do the best that we can with what they gave us. And, there may not be unanimous agreement about what we should do all the time. I have learned to live in an imperfect world where there are some doubts and uncertainties. We have never elected a President who was without significant roots and attachments to this country. It is not like we have been electing foreign princes as our Chief Executive. Ted Cruz may have been born in Canada, but his biographical connections to America are pretty solid.

[longtermmemmory]

sometimes I think these types of threads are troll threads to discredit conservatives. (ala kooky bible thumper threads around election time)

[okie01]

Like what?

Gee, I thought I covered that once before...]

My wife is a geneaologist. Birth certificates, marriage licenses, election registrations, death certificates and other means of identification were regularly issued from Day One.

The originals were usually maintained at the county court house, but handwritten copies were provided to the individuals for signature (usually achieved with a "mark", as many folks didn't now how to write).

[Tau Food]

You will find many references to the common law as including unwritten law. The reason is that when judges were deciding cases and creating the common law they were not comfortable explicitly stating that they were in fact making those laws. Instead, when asked why they were stating a rule that no one else had ever heard of, they explained that these rules actually had roots in ancient traditions, etc. If anyone asked where the average person might find a list of those ancient traditions, they were told that they were unwritten ancient traditions and could not actually be found anywhere. Of course, that sort of raised the question as to how the judge could have learned about the ancient unwritten traditions and there never was a satisfactory answer to that question.

The fact is that courts were required to devise rules for problems that were not covered by statutes. They had to devise rules to decide real cases in front of them. And, that's what they did. The notion that they were divining ancient traditions, etc. was just their little way of providing themselves with legitimacy.

At the present time, you will not find any judges pretending to be applying ancient unwritten traditions to decide cases. Increasingly, there are more statutes to cover more problems and there is of course more case law (common law precedents) to handle questions not covered by statutes. But, if they cannot find any statute or precedent to resolve a question now, they are more open about the fact that they are in fact creating the rule that they apply.

I know that you are also interested in what is called natural law. Check out this article on common law, natural law, and how courts function. There is even a mention or two of the law of equity, which has more religious roots.

[DoodleDawg]

Gee, I thought I covered that once before..

So people walked around with their birth certificates, election registration, etc.?

But I digress. My original question was how did they tell illegal immigrants from legal immigrants? Since your definition of "jurisdiction" is based on that I was curious.

[DiogenesLamp]

Do you know if there was such a statute then?

After repeating myself in these several exchanges of messages, I will inform you once again that there is no statute.

The source of the English common law that asserts those born on the soil are "natural born subjects" stems from Calvin's Case in 1608. This case revolved around peculiar circumstances created by the Union of the Crowns in 1603.

After reading through it, and reading the history surrounding it, it became quite apparent to me that this case was a potentially grave threat to the Union. (Which you ought to be against based on your other posts on the issue of Union. :) )

Had the decision gone the other way, it would have simply blown the Union apart, because the Scots would never have stood for being second class citizens in England.

The Calvin's Case decision was absolutely necessary to turn out as it did to prevent civil war. In other words, King James I, got the decision he absolutely had to have in order to save the union. Even so of the 14 judge panel, there were two dissenters. Lord Coke was the King's chief legal representative in the proceedings.

And this is how English law, which was descended from Roman Law, (note all the Latin gibberish in law) came to deviate significantly from Roman law on the point of how citizenship was acquired at birth.

Calvin's case was a gimmick to keep the peace and consolidate power for King James I.

[DiogenesLamp]

I really rather suspect that none of them thought it important enough to be more specific.

I think they regarded the concept as so universally understood that none of them thought the meaning was in dispute.

Now I have postulated that some of them believed it to follow the English rule, and others took it to mean the natural law principle as stated by Vattel, and each thinking the other agreed with him, didn't spend much time discussing it.

And let's face it. In 1787, it was pretty d@mned difficult to be born in America to an Alien father that didn't come here to stay. The percentage of overlap between the English Common Law method and the Vattel method was at that time very close to 100%.

I doubt at the time that many of them considered the differences would ever diverge significantly.

[DiogenesLamp]

But I digress. My original question was how did they tell illegal immigrants from legal immigrants? Since your definition of "jurisdiction" is based on that I was curious.

I think restrictions on immigrations did not occur until the Page Act of 1875, and the Chinese exclusion act of 1882 Prior to that, there was no such thing as an "illegal" immigrant. There were no laws prohibiting immigration at that time.

[Tau Food]

I will inform you once again that there is no statute.

I will take your word for that.

The term natural born citizen does not define itself for me. I feel comfortable performing my responsibilities as a citizen without ever being certain about what definition(s) the Founders would have given to the term. If I saw evidence that clearly indicated that most of them consciously agreed to a more specific definition than what they provided in the Constitution, I would be inclined to abide by it. But, nothing that I have read from people who have taken various positions on the matter has been overwhelmingly persuasive.

What I see is uncertainty. Clearly, they wanted there to be a significant connection between a president and this country, but I am not convinced that they wanted a list of detailed requirements that would serve only to arbitrarily exclude a lot of very good candidates.

I think that the problem more or less takes care of itself in that I have never seen any evidence that anyone dangerously foreign to this country could ever get himself elected president. And, yet, the phrase is in the Constitution and so it deserves our respect. My personal answer to that problem is to treat the term as meaning that the candidate must be a citizen at birth. That covers at least two of the words - born and citizen. I wish that I could do more. ;-)

[Tau Food]

I think they regarded the concept as so universally understood that none of them thought the meaning was in dispute.

That may be true, but if it was a commonly used term, why do we not find that the term was commonly used in other documents? Are there any books or documents written before the Constitution that used the term natural born citizen? (I ask that question genuinely not knowing the answer.)

[JediJones]

Rick Santorum - NOT an NBC. He was born in the U.S. to a father who was an Italian citizen not naturalized at the time of Rick Santorum's birth.

LOL! That's a new one. An American mom gives birth to a child on an American soil and the baby's not a citizen? If only his mom had just said she didn't know who the father was, he could've been an NBC? Missed it by that much!

[okie01]

People generally carried some form of identification with them. We were a mobile society, constantly moving west. ID was required to buy or sell land, write a will, open (or make a withdrawal from or close) a bank account, open up a line of credit at the general store.

Often, the instrument was a simple statement: Bearer is ________, from ___________ County, state of ____________, as attested by my seal and his mark below.

There appear to have been many variations on this theme. And when families moved, their various documents moved with them -- just as yours do today. Usually, upon settling in a new area, identity only needed to be established once.

Of course, a deed from a previous land sale or a birth certificate or marriage license would suffice. As a general rule, proof of ID only needed to be presented once. Presumably, the local law enforcement (a sheriff, e g.) would interest themselves in new arrivals and establish their bona fides.

Only strangers needed to ID themselves, of course. The process seems to have been more-or-less informal and doubtless far from perfect. But there were few "furriners" in our midst at the time, anyway.

[DiogenesLamp]

The term natural born citizen does not define itself for me.

That is because you haven't spent sufficient time contemplating the various iterations in which it does.

Suppose someone is in orbit when they are born, flying over this and that land willy nilly. How do you know what land they happen to be over when they are counted as "born"?

The only knowable thing about a child, of which no other circumstances of birth are known is it's parentage. You can know this because it can be established with positive proof through DNA testing.

What is the natural means of determining a child's national character? Well, by establishing who is the father, and determining what is his National character.

You can't always prove where a child is born, but you can certainly prove who the child's parents are.

But let us see what an early philosopher of Natural Law (Aristotle) had to say on the subject.

But the citizen whom we are seeking to define is a citizen in the strictest sense, against whom no such exception can be taken, and his special characteristic is that he shares in the administration of justice, and in offices.

...

But in practice a citizen is defined to be one of whom both the parents are citizens;

There is a lot of wisdom at the other end of that link.