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.
I didn’t want to ping you to the whole long post, but I mention you in the 7th paragraph up from the bottom of post 154. AV maintains that WKA did not any way deal with Natural Born. Edge, in particular usually maintains that he did.
“[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…. . . ”
Source – John Bingham in the United States House on March 9, 1866 (Cong. Globe, 39th, 1st Sess., 1291 (1866))
Many such as yourself who don't like the truth of these matters seek to counter this clear statement in which "not owing allegiance to any foreign sovereignty" is very clear langauge by misrepresenting what others involved in the passage of the 14th Amendment and attacking Bingham despite his distinguished career and respected gift for oratory on the House floor. So let us examine some of what others involved said at the time.
Here is what Senator Trumbull had to say:
Senator Trumbull: “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.”
Congressional Globe, Senate, 39th Congress, 1st Session Page 289
Rep. Wilson, the house judiciary committee chairman of such Congress,said this:
“It is in vain that 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 on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural born citizen of such States, except it may be that children born to temporary sojourners or representatives of foreign Governments, are native-born citizens of the United States.”
The phrase "recognized by all nations" is clearly a reference to the law of nations not to common law.
Congressional Globe, House of Representatives, 39th Congress, 1st Session Page 1117.
Note “temporary sojourners.” That is what Mr. Obama Sr was. So you see that Rep. Wilson was making the clear distinction between "natural born": as used in the Constitution and "native born" as dealt with in the 14th Amendment that you refuse to acknowledge. At the time of the 14th Amendment the distinction was clear to those who were involved.
Let us now look again at what Justice Story said in Shanks v. Dupont. Here are his words:
It does not appear to us that her situation as a feme covert disabled her from a change of allegiance. British femes covert residing here with their husbands at the time of our independence and adhering to our side until the close of the war have been always supposed to have become thereby American citizens and to have been absolved from their antecedent British allegiance. 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.
Thus you see what Story plainly says. Common law governs civil rights but political rights and acquiring and governing a national character, which is to say citizenship, are governed by the law of nations which is more general than the common law.
Blackstone himself recognized that the law of nations was more general than and not the same as the common law. He observed in his commentaries that while offenses against the law of nations were "principally incident to whole states or nations ...where the individuals of any state violate this general law, it is then the intersst as well as the duty of the government under which they live, to animadvert upon them with a becoming severity, that the peace of the world may be maintained." 4 BL COMM. 68 (1st ed. 1765-1769). This is why Chief Justice Waite, in Minor said that at common law it was in "doubt" that anything beyond someone born in the country of two citizen parents was a "natural born citizen." Common law recognized that the law of nations was a separate subject that was not the common law though even in England it co-existed with the common law as it did here and does here.
You have not shown that Tucker regarded "native born" as being the same as the phrase "natural born" in the Constitution so as to have the constitutonal phrase not refer to what Vattel called indigenes, a word that became cognate in our English at the time because of the popularity of his writings among the founders as you will see in the quote from John Marshall further on. That Tucker used "native" as he did does not change the intent of the Founders in using "natural" even though the two words mean the same in many respects. Certainly the phrase "natural born" chosen in 1787 was precisely chosen and does not because of its similarity to "native born" as used in more general discussion equate to what was meant by "native" in post-14th Amendment cases about 14th Amendment citizenship after the Civil War during Reconstruction. In fact the passage you quote shows that like Senator Trumbull years later, Turner understood that the constituional phrase barred other than complete allegiance, which was the Founders' concern. Complete allegiance was particularly important with regard to the father given the status of women at the time. Further "complete allegiance" was clearly more part of the intent at the time of the drafting of the body of the Constitution than it was when Senator Trumbull was speaking of the concept.
You seem to engage in misrepresentation and then when it is pointed out to you claim you are being insulted.
Here is what the great John Marshall said in The Venus in 1814:
The whole system of decisions applicable to this subject rests on the law of nations as its base. It is, therefore, of some importance to enquire how far the writers on that law consider the subjects of our power residing within the territory of another, as retaining their original character, or partaking of the nation in which they reside.
Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says:"the citizens are members of the civil society, bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. the natives or indigenes are those born in the country, of parents who are citizens. Society not being ahle to perpetuate itself but by the children of its citizens, those children naturally follow the condition of their fathers, and suceed to all their rights."
"The inhabitants, as distinguished from citizens, are strangers, who are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state, while they reside there, and they are obliged to defend it, because it grants them protection, though they do not participate in all the rights of its citizens. They enjoy only the advantages which the laws, or custom give them. The perpetual inhabitants are those who have received the right of perpetual inhabitants. These are a kind of citizen of an inferior order, and are united and subject to the society without participating in all its advantages."
In fact at the time of founding sometimes the mere word "citizen" without more was used to refer to an indigene. So you see you continue to misrepresent matters and foster inaccuracy because of your lack of knowlege of the history of the time and the use of language then, which is beginning to make evident a willfulness on your part not to see. I will be interested in seeing how you misrepresent what John Marshall said. I have no doubt that you will give it a try. By the way no less a figure than Scalia has recognized in colloquy in a case in recent years that at the time of the founding the Framers were concerned about dual loyalties with one loyalty being to Britain.
At this time in History, the terms were virtually synonymous. At that time period very few people could be native born but not natural born. The overlap was nearly 100%. (Except for slaves and Indians which is the GLARING discrepancy in your theory.) Let me show you an example where the term "native" is used, but the supplied definition is EXACTLY the Vattel Definition.
"...all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. "
Modern usage of the term "native" is obviously different from the 18th and 19th centuries usage of the term. Like I said, in those days, there were few people who could be one without being the other. When Tucker was using the term "native" he was very likely using it in the same sense as was the Chief Justice of the Supreme court in 1874. When he said "native" he meant "natural born citizen." (Which does not role off the tongue as easily.) There is no better proof of this sort of lazy word substitution than the fact that many of us freepers have taken to abbreviating it to NBC. It's just easier to use a shorter word or term.