Posted on 02/02/2016 4:36:59 PM PST by 11th Commandment
On the same day he won the Republican Iowa caucus, Sen. Ted Cruz of Texas got a favorable decision from the Illinois Board of Elections, which ruled that he met the citizenship criteria to appear on the state's primary ballot.
Two objectors, Lawrence Joyce and William Graham, had challenged Cruz's presidential bid with the board, contending that his name should not appear on the March 15 ballot because his candidacy did not comply with Article II of the Constitution.
In response to the filings, Cruz's lawyers relied on Supreme Court precedent, legal history and articles from noted constitutional scholars to defend the view that he is in fact "natural born" within the meaning in the Constitution.
(Excerpt) Read more at huffingtonpost.com ...
I brought in Locke last year and presently as rebuttal to your point that Vattel was the only writer speaking of a right of revolution. (Your words: ""John Locke does not declare a natural right to revolution and Independence" and "Indeed, the very ideas of "Revolution" and "Independence" comes from Vattel, and no one else." )
These claims by you show remarkable historical ignorance. When it came to writers serving as an impetus to the Revolution, Locke was The Man. I even cited a source noting Jefferson himself credited Locke (along with Algernon Sidney) as being "the most important thinkers on liberty."
I wasn't claiming "citizen" came from Locke. I don't need to.
So on the right of revolution and liberty, Vattel wasn't some unique source or inspiration.
On the use of "citizen," Vattel wasn't some unique source or inspiration (Rousseau, who was also highly influential on Jefferson's Declaration) wrote of citizenship.
And so we chose to follow the writers that used the word "Citizen".
As to the Revolution itself, English writers were the more significant.
As to citizenship, we did employ the word "citizen" (though often using it simultaneously and interchangeably with "subject"), but in drafting the Constitution we employed the English common law term "natural born" and applied it to "citizen," thus signifying that the English birth-rule which had to that point applied to "subjects" now applied equally to those we call "citizens."
This is not that complex. And pretty much everyone speaking on the point after 1787 viewed it in those terms.
Okay, so i'll bite. Did Rousseau define citizenship? Did he explain what it was, rather than say what rights citizens ought to have?
Yes. Rousseau saw the citizen as a member of the political community, which conferred a legal status entitling such to civil rights and attendant benefits and obligations. And he saw the citizen as being an active member in the democracy through political involvement. His major work ("The Social Contract") goes into these ideas in-depth.
In the absence of a Rousseau definition, it seems eminently reasonable to do so.
You need to show where Jefferson defines "citizen" in the Declaration and then show how that so uniquely matches Vattel that one can say the one derives from the other. In the absence of that demonstration, it seems all you're doing is hand-waving again.
I have an Ace.
What you have rather is more of a flush -- sampling bias, tunnel vision, anachronism, question-begging, and inconsistency -- all drawn from the same suit of falsity and fallacy.
For some reason, the movement to independence didn't pick up any speed until 1764, coincidentally, after Vattel's book had made it over to the Boston debate club.
Oh, gosh, here I thought all these years 1764 and 1765 were significant because that's when England imposed the Stamp Act and Sugar Act, thereby pinching the Colonists' pocketbooks and starting that whole "no taxation without representation" thing. It was because Vattel's book was published? Whoodda thunk it?
Your take on history continues to amuse.
Yes, we should all hinge our understanding of history on the flattering deference that one politician gives to another on the House floor.
My point goes much deeper than that. Nice try, though.
Wilson, as Chairman of the House Judiciary Committee, gave a legal report to the House, containing legal citations and authorities. (He was a bit the Jack Maskell of his day, though as elected representative and Chairman his work carried with it an even greater status. Wilson was the guy YOU once cited, dishonestly truncating his remarks to make him sound like he held to your view. (Remember that one? Or should I link your post?) Here (again) are selected portions of his floor remarks:
This provision, I maintain, is merely declaratory of what the law now is. This, I presume, would not be disputed if the language were qualified by the presence of the word "white." In the absence of this word, I am sure that my proposition will be disputed by every member of this House who believes that this Government is exclusively a "white man Government." I think this question of sufficient importance to justify me in giving it something more than a mere passing notice. Blackstone says:
"The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the Crown of Englnd: that is, within the ligeance, or, as it is generally called, the allegiance of the King; and aliens are such as are born out of it." Sharswood's Blackstone, vol. 1, p. 364.
The principle here laid down applies to this country as well as England. It makes a man a subject in England, and a citizen here, and is, as Blackstone declares, "founded in reason and the nature of government."
* * *
"It is in vain we look into the Constitution of the United States for a definition of the term "citizen." It speaks of citizens, but in no express terms defines what it means by it. We must depend upon the general law relating to subject and citizens recognized by all nations for a definition, and that must lead to a conclusion that every person born in the United States is a natural born citizen of such States, except it may be that children born on our soil to temporary sojourners or representatives of foreign Governments are native born citizens of the United States. Thus it is expressed by a writer on the Constitution of the United States: "Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity." Rawle on the Constitution, pg. 86." Rep. Wilson. Cong. Globe, 39th Cong., lst Sess. 1115 - 1117 (1866).
And there is John Bingham, who (under your supposition holds to very different view on "natural born citizen") simply sitting and hearing all this without offering the least bit of objection?
Nah. That's a totally fatuous read on the legislative history. The far better view is that Bingham had no reason object, because Bingham very clearly and succinctly espouses the same view:
"Who does not know that every person born within the limits of the Republic is, in the language of the Constitution, a natural-born citizen." Rep. Bingham, Cong. Globe, 40th Cong, 2nd Sess, p. 2212 (1869)
What Bingham says and what Bingham's "learned friend" James Wilson says align perfectly.
Yeah, he clarified his position earlier. It rebukes yours.
Oh, oh, oh, this is "fall out of my chair with laughter" time.
You are claiming that earlier remarks "clarify" later remarks? Was he sooth-saying in 1866? No, DumbDumb, that is exactly backwards. A person's later views can only be taken to clarify or modify earlier views. But the past does not clarify the future.
And you simply fail to understand Bingham's earlier statements, forcing an unnecessary (and unexplained) conflict with both his House colleagues as well as Senators Trumbull and Howard, the draftsmen of the citizenship clauses of the Civil Rights Act and 14th Amendment, respectively.
Do you need for me to explain Bingham to you again?
And posted above is Jus Sanguinus, Vattel based Natural Law, straight and clear out of the mouth of John Bingham.
No, it isn't. Bingham doesn't require that children be born to parents who are citizens. He omits that key part of your view of Vattel.
The difference between your position and mine is that my position can incorporate yours, but your position cannot incorporate mine. John Bingham easily lives within the framework of my position.
Your position doesn't fit what Bingham says:
"Who does not know that every person born within the limits of the Republic is, in the language of the Constitution, a natural-born citizen." Rep. Bingham, Cong. Globe, 40th Cong, 2nd Sess, p. 2212 (1869)
Bingham says "every person born within the limits of the Republic is a natural born citizen." You say "only persons born to parents who are citizens (or whose father is a citizen) is a natural born citizen."
There is no way you can harmonize your view with his words.
By contrast, I have no problem with harmonizing the words of Bingham you keep hopping up and down about. Because, unlike you, I don't read into his words "born of parents who are citizen."
A sh*t I do not give about the consequences of a state court ruling under the premise of "default" law.
When that state court is cited with approval within both the Congress and the SCOTUS, then you should care. But whether you personally care or not, the case does much to sink your entire theory.
The premise being that State Law modifies Federal Law. No thanks. It requires too much brain damage to accept that premise.
Fat Tuesday was yesterday, and today your Straw Man should be packed with a bit less straw by now.
No one makes the claim state law modifies federal law.
I probably considered the question so ignorant as to be unworthy of reply. Come to think of it, I still do.
Read: "You've stumped me again, and I don't have an intelligent reply, so I'll just stomp my feet and whine a bit."
They should have applied American Common law.
And in 1844, what "American Common law" case should Sandford have cited and applied? You're sounding rather Apuzzo-esque here. I predict a big fat "zero" of a reply here: you will be able to cite no applicable "American common law."
OK. But here what's at issue is a term contained within Article II. Right?
You have drifted onto some other playing field for no apparent reason.
Yes, Vattel is cited on matters of international law ("treaties, alliance, and confederations.") He's not cited on matters of municipal (domestic) law. The citizenship status of person born within the nation is a matter of municipal law.
Yeah, yeah. You pulled that same "I kinda recall something from Tucker" bit a year ago. Read Post 519. It sets you straight.
He's late to the party, and much information of which we used to have compiled, many of us have simply lost track.
More crappola from you. From what I recall of your posting history here, you started on this topic about one year before I did.
Still managing to kick his @$$ though.
Oh, dream on. In 2 and 1/2 years on this topic, you haven't been able to identify a SINGLE point of contention or factual issue in dispute on which you've prevailed.
Every time you make this same claim, I challenge you with the same reply. And every time you've failed the challenge.
Within the 39th Congress the indigenous tribes and their offspring were treated differently from immigrant aliens. And the SCOTUS in WKA observes likewise that the Indian tribes presented a special case unknown to the common law.
And your point is . . . ?
Is there some point to this latest paste-job?
In that case, William Lewis (the attorney so fancied by DL) represented the Defendant and cited Vattel to support quashing the indictment.
Lewis was opposed by William Rawle (the attorney DL thinks was the source of the English law based view DL opposes). The Court (James Wilson, a member of both the Continental Congress and Constitutional Convension) sided with Rawle, rejecting Lewis's Vattel-based argument.
Very good. :)
That's a dissenting opinion you're quoting. Why do you think a dissenting opinion is significant?
How many of these irrelevant pastes do you have?
What????? How do you manage to pull Shanks out of thin air and suggest I'm somehow speaking to that when it's not been part of the discussion?
Right. Just as our U.S. rules on citizenship are part of our municipal law. See Perkins v. Elg, 307 U.S. 325 (1939)("municipal law determines how citizenship may be acquired").
the Framers, in matters of citizenship, looked to the law of nations.
Wrong. Story didn't say that. Go back and read more carefully.
the other side's citing Shanks
If that presidential eligibility case entailed someone born outside of the U.S. (like Cruz) why on earth would anyone be citing Shanks, a case that involved a person born in South Carolina?
And if that eligibility case were brought against someone born in the U.S. (e.g., Rubio), the attorneys for Rubio would cite U.S. v. Wong Kim Ark, a case making abundantly clear that our citizenship rules are founded on English common law (a case in which Shanks is cited by the majority in support of that point).
It might be simpler if you take some of the straw men which seem to be inhabiting your brain, paint different colors on them, and let them battle out this fictitious argument.
As to Story's opinion in Shanks: Here is precisely what he says on point:
"The incapacities of femes covert provided by the common law apply to their civil rights and are for their protection and interest. But they do not reach their political rights nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law applicable to ordinary transactions, but stand upon the more general principles of the law of nations.
Perhaps it is you who should read more carefully. What Story holds applies not just to the question of what "natural born citizen" means in the Article II eligibility clause but to the broader category of the law of political citizenship as a whole. Thus, according to Story, who was the acknowledged expert at the time on the subject, what was said in English common law did not apply to this broad category just because it was set out in English common law. You have asserted that Story did not say what I have just shown that he clearly said. The argument for Cruz' meeting the presidential eligibility requirement relies upon the leap from the fact that the Framers were familiar with English common law that is what they had in mind when they chose the language for the eligibility clause. What Story held does not support that leap in reasoning.
It is the same standard that applies to every constitutional issue. The notion that Congress didn't have any idea what they were doing when they did it is idiocy.
No evidence is necessary to establish self-evident truths.
So I consider your repeated "he wasn't at the convention" line to be meaningless and mere side-stepping to avoid the fact I've simply WAY more authorities to cite.
They aren't "authorities" if they do not know what the F*** they are talking about. They are false authorities, and that's pretty much all you have.
You disdain the delegate requirement because *YOU* haven't got any.
And as far as the historical record on this topic goes, that these attorneys served in that capacity doesn't seem to have mattered to or impressed anyone else.
It is not my responsibility to hold the hand of lesser minds who do not know what they are doing. The fault lies with them.
OK, I googled that, and it pulled up the case of M'Ilwaine v. Coxe, a citizenship case in which Rawle won.
Well then you missed the reference. Pity you can't seem to do anything right.
Again, your method here is to assume there were deliberations on the term "natural born citizen" and that persons who attended the Convention or ratifying conventions thus can be considered to hold a superior understanding of the "original intent."
Wow genius. You eventually catch on to the obvious. Yeah. The law means what the legislators understand it to mean when they create it. One would not think this would be an issue subject to debate, but then one does not normally spend much time arguing with a f***ing idiot.
But the record is devoid of any suggestion that "NBC" was discussed in the least.
The absence of a record does not establish a record of absence. You are attempting to prove a negative. If it was not discussed, then that is because everyone was already in a semblance of agreement as to what it meant.
I'm fine with defaulting back to the 1776 meaning. By 1787, it was no longer a topic worthy of discussion, so they didn't.
But he doesn't say the parents must be citizens. You are reading that into his words to force-fit him into your Vattel paradigm.
It says they can't owe any allegiance to any other sovereignty. If you are not a slave or an Indian, that would be a pretty good trick.
What sort of person might this be that has parents that aren't citizens of anywhere? Don't bother . I know you can't answer that question. You are just merely pushing more chaff out of your stricken argument.
Though you still lack an example of a (white) person born in PA to alien parents who was described as an alien. The book appears to have sat on the shelf with no one actually applying the supposed rule.
There you go with that trying to prove a negative again. There may very well be such an example in history, but that such has not yet been brought forward is not proof that it doesn't exist. This is why you do so badly in these discussions. You do not have a logical mind. You quickly flit from one non-sequitur to another, and aren't even cognizant of the logical fallacy argument you are attempting to advance.
You have yet to establish that before Rawle there was any clear-water consensus that the rule was other than he states.
You mean other than the fact that his Co-Counsel, Four State delegates and Supreme Court justices, as well as Bushrod Washington and John Marshall disagreed with his position? Other than that?
Well rational people consider that pretty good evidence that he was repeatedly informed as to what was correct, and deliberately chose to ignore it, and state his own opinion in it's place. Kinda like you.
In one of his freedom cases argued before the Supreme Court of Pennsylvania, the court unanimously rejected his argument that a slave was a citizen because she was born here. It doesn't get much more rebuked than a unanimous decision against you.
I've demonstrated much evidence to the contrary -- how Adams and Franklin retained the English common law terminology ("natural born subject") in their respective state constitutions,
But stipulated that the Sons of freeholders may vote. (Freeholder is by far the most used term, but Citizen is in there also.) The Voting franchise is pretty much exclusive to citizens.
Zoltan has added another with Rep. Hillhouse:
Who is also not a delegate to either the US Constitutional convention, or the Connecticut Ratification convention. Nor was he a member of the Continental Congress in 1776.
And What claim to expertise has he?
Do tell. Where's the hue and cry from the Pennsylvania delegation (or anyone else) that such is NOT our law?
I think the evidence for their hue and cry is the fact that his proposal did not become law. :)
"Were this statement by [Hillhouse] false [they] would have all said to him: "You stupid twit! Don't you know that [Emmerich de Vattel] is the basis of citizenship?"
They may very well have privately chastised him, but this is not likely to be so public as would the chastisement from publishing a book with other distinguished Judges names in it and asserting the law of their state stems from Vattel.
I accept that is a possibility.
It is a foregone conclusion. Judges are not noted for their Humor regarding points of law with which they disagree.
The children of non-naturalized German immigrants in Pennsylvania were later recognized seemingly without question to be natural born citizens.
Running for President, were they? Yeah, that's all the time i'm going to spend on that assertion.
It really burns you, doesn't it, every time I take one of your sacred cows and skewer it?
I couldn't say. I have yet to see you accomplish it. But if you mean your tendency to lie about the truth, yeah, that gets pretty tiresome.
Lynch states what the common law on citizenship was.
No one needed a ruling in the Lynch case to know what English Common law said. The fallacy of Lynch was in assuming that it must apply because New York did not stipulate otherwise. Of course, New York later corrected that oversight.
The 39th Congress was tasked with taking the existing law (the common law) and giving force and equal protection effect to that, which the Congress did via the Civil Rights Act and 14th Amendment.
And here you are still trying to move the discussion up 90 years later to when many people had forgotten what they used to know.
Even then, Bingham gets it right by clarifying that these legislative acts are only intended to apply to people who had no allegiance to anyone else.
Your hallowed piece of later NY legislation is IRRELEVANT when the question is "what is the common law rule in the U.S.?
Not at all. It demonstrates that your English Common Law rule was not inviolable. That a system which excluded the children of Transient Aliens was preferred to one which creates "anchor babies."
They were right. Had the nation insisted on this common sense rule, we would not have an ignorant, lazy, incompetent piece of sh*t like Obama as President.
A man who's only qualification for office is his color.
Statutory law is NOT common law (which is judge-made law or case law). Your ignorance here is at the most fundamental level of legal knowledge.
Not ignorance. Better understanding coupled with willful disobedience. No. Judges do not MAKE law. Judges that attempt to make law should be hanged. I understand your assertion just fine. I just disagree with it. It is contrary to reason and natural law, and the fact that it is commonly practiced does not legitimize it.
As for the Common law, let me have Madison explain it to your childish little authoritarian-@$$-licking pea brain.
Read the whole D@mned thing, and try to grasp some rationality for a change.
You were claiming that Shanks stands for the proposition that "the Framers, in matters of citizenship, looked to the law of nations." No. Nothing in Shanks states that. By contrast, Perkins v Elg makes clear that in matters of citizenship, our municipal law governs.
As to Story's opinion in Shanks: Here is precisely what he says on point: "The incapacities of femes covert provided by the common law apply to their civil rights and are for their protection and interest. But they do not reach their political rights nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law applicable to ordinary transactions, but stand upon the more general principles of the law of nations.
And I put you to the task of quoting the text to demonstrate Story makes no reference to the "Framers" or that our citizenship laws follow the law of nations. Shanks involved potentially competing claims by the U.S. and England over Ann Shanks's nationality. And resolution of the property dispute turned on application of two treaties between those nations. Treaties. Multi-nation claims. That is the stuff of the law of nations. Not birth citizenship governed solely by U.S. municipal law.
Thus, according to Story, who was the acknowledged expert at the time on the subject, what was said in English common law did not apply to this broad category just because it was set out in English common law.
Story's view was the English common law jus soli was the rule in the U.S. And this is made abundantly clear in Story's concurring opinion in Inglis v Trustees of Sailors Snug Harbor, the companion case to Shanks (the cases were decided and handed down together). Here's Story's discussion on the alienage of John Inglis, a person born in NY of date uncertain:
With these principles in view, let us now come to the consideration of the question of alienage in the present case. That the father and mother of the demandant were British born subjects is admitted. If he was born before 4 July, 1776, it is as clear that he was born a British subject. If he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. 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.
You have asserted that Story did not say what I have just shown that he clearly said.
Story says nothing about the Framers looking to the law of nations on citizenship. Story, however, does clearly espouse the English common law rule.
I think you need to read the case a bit more carefully. The opinion, by Thompson, J., specifically says:
"How then is his father Charles Inglis to be considered? Was he an American citizen? He was here at the time of the declaration of independence, and prima facie may be deemed to have become thereby an American citizen. But this prima facie presumption may be rebutted; otherwise there is no force or meaning in the right of election. It surely cannot be said that nothing short of actually removing from the country before the declaration of independence will be received as evidence of the election, and every act that could be done to signify the choice that had been made,
Page 28 U. S. 124
"except actually withdrawing from the country, was done by Charles Inglis. He resided in the City of New York at the declaration of independence, and remained there until he removed to England a short time before the evacuation of the city by the British in November, 1783; New York during the whole of that time, except from July to September 1776, being in possession, and under the government and control of the British, he taking a part and acting with the British, and was, according to the strong language of the witness, as much a royalist as he himself was, and that no man could be more so. Was Charles Inglis under these circumstances to be considered an American citizen? If being here at the declaration of independence necessarily made him such, under all possible circumstances he was an American citizen. But I apprehend this would be carrying the rule to an extent that never can be sanctioned in a court of justice, and would certainly be going beyond any case as yet decided.
"The facts disclosed in this case, then, lead irresistibly to the conclusion that it was the fixed determination of Charles Inglis the father, at the declaration of independence, to adhere to his native allegiance. And John Inglis the son must be deemed to have followed the condition of his father, and the character of a British subject attached to and fastened on him also, which he has never attempted to throw off by any act disaffirming the choice made for him by his father.
"The case of McIlvaine v. Coxe's Lessee, 4 Cranch 211, which has been relied upon, will not reach this case. The Court in that case recognized fully the right of election, but considered that Mr. Coxe had lost that right by remaining in the State of New Jersey not only after she had declared herself a sovereign state, but after she had passed laws by which she pronounced him to be a member of, and in allegiance to the new government; that by the Act of 4 October, 1776, he became a member of the new society, entitled to the protection of its government. He continued to reside in New Jersey after the passage of this law and until sometime in the year 1777, thereby making his election to become a member of the new government, and the doctrine of allegiance became applicable to his case, which rests on the
Page 28 U. S. 125
"ground of a mutual compact between the government and the citizen or subject, which it is said cannot be dissolved by either party without the concurrence of the other. It is the tie which binds the governed to their government, in return for the protection which the government affords them. New Jersey, in October, 1776, was in a condition to extend that protection, which Coxe tacitly accepted by remaining there. But that was not the situation of the City of New York; it was in the possession of the British. The government of the State of New York did not extend to it in point of fact.
"The resolutions of the convention of New York of 16 July, 1776, have been relied upon as asserting a claim to the allegiance of all persons residing within the state. But it may well be doubted whether these resolutions reached the case of Charles Inglis. The language is
"`that all persons abiding within the State of New York, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of the state.'
"Charles Inglis was not, within the reasonable interpretation of this resolution, abiding in the state and owing protection to the laws of the same. He was within the British lines, and under the protection of the British army, manifesting a full determination to continue a British subject. But if it should be admitted that the State of New York had a right to claim the allegiance of Charles Inglis, and did assert that right by the resolution referred to, still the case of McIlvaine v. Coxe does not apply"
Thus the case applied British common law for the reasons stated in the material quoted above, that is to say, because father and son elected to be and stay British subjects.
In point of fact the right of election upon which the case turned, was established in the law of nations as Justice Thompson noted, citing specifically Vattel,and such American authorities as Kent's [he of Columbia law school] Commentaries on American Law, and American cases, where he says:
"This right of election must necessarily exist in all revolutions like ours, and is so well established by adjudged cases that it is entirely unnecessary to enter into an examination of the authorities. The only difficulty that can arise is to determine the time when the election should have been made. Vattel, B. 1, ch. 3, sec. 33; 1 U. S. 1 Dall. 58; 2 U. S. 2 Dall. 234; 20 Johns. 332; 2 Mass. 179, 236, 244, note; 2 Pickering 394; 2 Kent's Com. 49."
You have been extraordinarily selective in choosing a small passage from Snug Harbor, and, in doing so, have distorted and misrepresented its holding. It turned upon a right of election carried into early American law from the law of Nations; English law applied to the Inglises father and son because of the election that they made to be British subjects. So, to sum it up, what I said about what Story held in Shanks is in fact correct. I believe that you failed to carefully read Snug Harbor.
One simple way to demonstrate that you're reading Inglis incorrectly is to observe that in U.S. v. Wong Kim Ark, it was the Court majority of six justices who accepted that Inglis supported the view that our citizenship law follows the English common law rule of jus soli. Inglis was not cited by the dissent, which was urging application of Vattel.
As to Shanks, both sides in WKA cite it, which should signal that the case doesn't clearly favor one birth-citizenship view or the other. Ann Shanks was born in South Carolina before the Declaration of Independence, so the case isn't terribly helpful on the question of what birth-rule held true in the U.S. afterward. It was an international law case involving treaties. Yes, the law of nations has relevance to that. But the opinion doesn't bear out your claim that Story asserted that "the Framers, in matters of citizenship, looked to the law of nations." Story doesn't say one word about the Framers.
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