What Tucker makes clear is that the concern was over dual loyalties in the adoption by the Framers of the phrase that they used, so that the historical occasions in Europe that he refers to where there were such dual loyalties, would not occur here. If you were familar as he was with that history you would not misrepresent matters in the way that you insist upon unless you were determined to arrive at a pre-ordained concluson regardless of the historical context. He is not saying in any way, writing as he was, long before the 14th Amendment was conceived, that "native born" in the sense that it came to mean not "naturalized" after the 14th Amendment is interchangeable with the constituional phrase. At the time he was writing for his 1804 edition of Blackstone, the 14th Amendmetn concept had not yet come into being as discussed in many cases after the 14th Amendment was adopted.
If the Framers had wanted to use "native born" they would have done so. The Dred Scott decision, which was law until repealed by the 14th Amendment made it clear that jus sanguinis prevailed from the Framing until that time. Representative Bingham of Ohio, the principal architect of the 14th Amendment stated in Congress explicitly as the Amendment went forward that it did not change the "natural born" requirement that a President must be born in this country of two citizen parents just as Marshall referred to in The Venus (1814).
What is at issue is what the Framers intended, not what Gray said after the 14th Amendment was adopted well after the Civil War and the ensuing concerns raised by the freeing of the slaves about someone who was an ordinary individual and not a presidential candidate.
The issue of the meaning of "natural born" in Article II was not in any way before him and could not have been decided by him and his court. You are extrapolating backwards where there is absoultely no justification for doing so.
No Framer of the Constitution, and no one who voted for its adoption indicated in any way that "natural born" in Article II meant anything other than its accepted meaning under the law of nations as universally taught in America at the time. This is reflected also in all the legal dictionaries in use in this country as that time as well as being reflected in the langauge used by John Jay in his well known letter to Washington before the phrase was adopted. Washington, Jay, and the majority of the Framers were familiar with Vattel and his description of what the phrase meant. There were several English translations of Vattel's book before the drafting of the Constitution and Vattel was discussed right along with Locke and a few others who were featured in much of the discussion of the time.
You keep insisting on distorting ordinary word as well understood by all Americans at the time of our Founding. Citizen and subject are two different very ordinary words. That Americans who were "subjects" of the king of England was the excuse used by the British, by the way, to impress our seamen which became one of the causes of the War of 1812 which led to the "consolidation" of our Revolution. That a bloody war resulted shows how firm the distinction was between a citizen of a Republic versus the subject of a monarchy in our minds. The law of monarchical subjects did not survive the adoption of the Constitituion, as Tucker makes clear as concerns the situation of citizenshhip, where, as Story made clear, the law of nations prevailed. Where the common law came over, with regard to such things as the law of trespass upon property, was not part of the law of nations and was not barred by our Constitution. As Tucker makes clear the reqquirements in our Constituton for presidential eligibility are far different from the requirements imposed upon monarchs under the common law of England. Our presidential eligibility requirements, he makes clear, are completly unlike those that an English king must meet.
And you persist in misunderstanding. Many court cases, many scholars, have said that we follow the English common law in this. For instance, Rep Wilson during the 14th amendment debates quotes a court case
The term “citizen” as understood in our law, is precisely analogous to the term subject in common law, and the change of phrase has entirely resulted from the change of government.
As the passage you quote points out where a Constitution changes the common law the common law yields.
And Just where did the Constitution change the common law with regard to natural born? It didn’t.
The reference to "native born" where Tucker discusses loyalty does not alter the constitutional phrase; it refers to it. The constitutional phrase remains "natural born." .
You are really working hard at misunderstanding. Tucker makes clear that “native born” and “natural born” are synonymous. Therefore “born on the soil” (usual diplomatic exceptions) means natural born. You espoused Tucker as definitive on citizenship – there you have his opinion. Or do you know not like it so much now that it contradicts what you want to believe?
What Tucker makes clear is that the concern was over dual loyalties in the adoption by the Framers of the phrase that they used, so that the historical occasions in Europe that he refers to where there were such dual loyalties, would not occur here. If you were familar as he was with that history you would not misrepresent matters in the way that you insist upon
Who is ignorant and who is misrepresenting? Tucker (and others) speak of foreign influence and Tucker specifically mentions the Dutch revolt.
If you look it up, you will see that Holland was ruled for a time by Spaniards, appointed statholders by Spain, and the office – as Tucker mentions – became hereditary. So his (and other Founder’s) concerns were not for those born of foreigners on US soil, who are US citizens, but for foreigners who are not, who may be naturalized only for that purpose. See what Joseph Story has to say on this:
It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe. Germany, Poland, and even the pontificate of Rome, are sad, but instructive examples of the enduring mischiefs arising from this source.This is well explained by Alexander Hamilton in the Federalist Papers #68
these most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?Showing that the chief concern was not US citizens born of foreign immigrants, but rather concern about foreign governments trying to insert their own officials into the US government.
If the Framers had wanted to use "native born" they would have done so.
Many used the two interchangeably (as I showed quoting Tucker above) so why would they say both?
Representative Bingham of Ohio, the principal architect of the 14th Amendment stated in Congress explicitly as the Amendment went forward that it did not change the "natural born" requirement that a President must be born in this country of two citizen parents just as Marshall referred to in The Venus (1814).
Please give the citation where Bingham says exactly that.
What is at issue is what the Framers intended,
Two points: first, you said you accepted Tucker as an authority. Tucker says “native born” and “natural born” are synonymous. Second: the issue right now is what the law is now. The Framers did not allow for the idea of a woman president – do you think Michelle Bachmann would have been disqualified had she won?
The issue of the meaning of "natural born" in Article II was not in any way before him and could not have been decided by him and his court. You are extrapolating backwards where there is absoultely no justification for doing so.
You might enjoy discussing that with Diogenes Lamp and Edge, both of whom think it was before him and that he decided “no”. It was not the issue before him, but from his opinion, it is clear that he felt WKA was natural born, because he speaks of the US law as derived from English common law. As for “extrapolating backwards” tell that to the SCOTUS justices who have cited WKA.
No Framer of the Constitution, and no one who voted for its adoption indicated in any way that "natural born" in Article II meant anything other than its accepted meaning under the law of nations as universally taught in America at the time.
Ah, that is where you are wrong, and are not producing sufficient evidence. Many terms in the Constitution come from English common law – see what Justice Scalia has to say about this. And while the Founders knew Vattel’s work, they relied on Blackstone a whole more.
The law of monarchical subjects did not survive the adoption of the Constitituion, as Tucker makes clear as concerns the situation of citizenshhip, where, as Story made clear, the law of nations prevailed.
I have shown you what Tucker thinks - that “natural born” and “native born” are synonyms. I have shown what Justice Story said:
"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 don’t like it, so you are trying to obfuscate and insult your way out of it.