Free Republic
Browse · Search
Smoky Backroom
Topics · Post Article

To: patlin

I did take ‘em. That’s why I’m so feisty!

parsy, who also had some candy and may be on a sugar high???


1,873 posted on 02/27/2010 6:26:05 PM PST by parsifal (Abatis: Rubbish in front of a fort, to prevent the rubbish outside from molesting the rubbish inside)
[ Post Reply | Private Reply | To 1871 | View Replies ]


To: parsifal
Chisholm v. Georgia,33 the first great constitutional case decided after the ratification of the Constitution of 1789:

[T]he sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State . . . .

[A]t the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called) and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty. . . .

Sovereignty is the right to govern; a nation or State-sovereign is the person or persons in whom that resides. In Europe the sovereignty is generally ascribed to the Prince; here it rests with the people; there, the sovereign actually administers the Government; here, never in a single instance; our Governors are the agents of the people, and at most stand in the same relation to their sovereign, in which regents in Europe stand to their sovereigns.

Jay‟s articulation of the opposition between subjects and citizens is confirmed by Justice James Wilson‟s opinion in Chisholm. Wilson noted that with the exception of Article III, the Constitution refers to “citizens” and “persons,”35 and not subjects: “[t]he term, subject, occurs, indeed, once in the instrument; but to mark the contrast strongly, the epithet „foreign‟ is prefixed.”

Both Jay and Wilson‟s opinions suggest that usage in the founding era reflected a significant conceptual distinction between the words “subject” and “citizen”—a distinction that was strongly associated with the ideas about the nature of sovereignty.

The term “citizen” reflects the notion that individual citizens are sovereign in a republic, whereas the term “subject” reflects feudal and monarchical conceptual of the monarch as sovereign and the individual as the subject, owing a duty of allegiance and duty to the monarch. This conceptual distinction may be relevant to the original understanding of the phrase “natural born citizen” which was used instead of “natural born subject,” the phrase that served as a term of art in English legal usage. The notion of a natural born subject may reflect a feudal understanding of political obligation: those born in the kingdom owed a natural duty of allegiance to their king and were his natural subjects.

Given a republic theory of popular sovereignty, citizens are sovereign and the notion of a “natural born subject” would be anathema(a vehement denunciation). This leaves a gap in the theory of citizenship—a gap that the Constitution fills with the concept of a natural born citizen.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1263885

1,879 posted on 02/27/2010 6:48:45 PM PST by patlin (1st SCOTUS of USA: "Human life, from its commencement to its close, is protected by the common law.")
[ Post Reply | Private Reply | To 1873 | View Replies ]

Free Republic
Browse · Search
Smoky Backroom
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson