Posted on 11/12/2010 4:53:42 PM PST by Retired Intelligence Officer
I need some help on this. I was reading where Bobby Jindal was born to immigrants here on visas. If he was born in Baton Rouge before they became naturalized citizens, wouldn't that make him ineligible to become President? I am in a heated argument at another website over this and I need answers to this controversy. Any help would be appreciated.
R.I.O.
“What is the gauge..to determine..subject to the jurisdiction?”
“The gauge is the moral relation of the parents to the state.”
No court has ever agreed to that. The gauge is not the parents, but the relation of the person to the jurisdiction of the United States. Persons born in the territory of the United State are “under the jurisdiction.”
In U.S. v. Wong Kim Ark, 169 U.S. at page 655, the court said:
“The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also calling ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power’ of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual -as expressed in the maxim, protecti trahit subjectionem, et subjectio protectionem- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects.”
As for:
“Jus sanguines is a genuine affiliation with the nation..jus soli is not.”
Your opinion. The US law is different.
Albert Orville Wright, AN EXPOSITION ON THE CONSTITUTION OF THE UNITED STATES (31st Ed.) (1888)
“All persons born in the United States, except wild Indians, are natural-born citizens, and any foreigner may become an adopted citizen by being naturalized....”
No, it is YOU that has a comprehension problem. Waite confirmed that children born of an alien father was at birth an alien.
There is no doubt that women may be citizens. They are persons, and by the Fourteenth Amendment "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are expressly declared to be "citizens of the United States and of the state wherein they reside." But in our opinion it did not need this amendment to give them that position. Before its adoption, the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several states, yet there were necessarily such citizens without such provision. There cannot be a nation without a people.
To determine, then, who were citizens of the United States before the adoption of the amendment, it is necessary to ascertain what persons originally associated themselves together to form the nation and what were afterwards admitted to membership. Looking at the Constitution itself, we find that it was ordained and established by "the people of the United States," [Footnote 3] and then going further back, we find that these were the people of the several states that had before dissolved the political bands which connected them with Great Britain and assumed a separate and equal station among the powers of the earth, [Footnote 4] and that had by Articles of Confederation and Perpetual Union, in which they took the name of "the United States of America," entered into a firm league of friendship with each other for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to or attack made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever. [Footnote 5]
Whoever, then, was one of the people of either of these states when the Constitution of the United States was adopted became ipso facto a citizen — a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was consequently one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were.
Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides [Footnote 6] that
“No person except a natural-born citizen or a citizen of the United States at the time of the adoption of the Constitution shall be eligible to the office of President, [Footnote 7]”
and that Congress shall have power “to establish a uniform rule of naturalization.” Thus, new citizens may be born or they may be created by naturalization...
At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that 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...
The words “all children” are certainly as comprehensive, when used in this connection, as “all persons,” and if females are included in the last, they must be in the first...
Under the power to adopt a uniform system of naturalization, Congress, as early as 1790, provided “that any alien, being a free white person,” might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States, being under twenty-one years of age at the time of such naturalization, should also be considered citizens of the United States
http://supreme.justia.com/us/88/162/case.html#T4
Therefore, at common law, with the nomenclature of which the framers of the Constitution were familiar with, Obama at birth was British and NOT American:
Waite's decision clearly defined who were the born citizens as opposed to those that were naturalized citizens according to the 14th. Obama would have fallen under the later according to Waite.
“Waite confirmed that children born of an alien father was at birth an alien.”
False. Waite confirmed no such thing, in fact, opposite to this, he noted that:
“Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts ...”
It is false that Waite said that children born in the US of alien parents were aliens. On the contrary, he noted some authorities have stated that they too were natural-born citizens. Some of these sources and authorities have been shared, and some were used in Wong Kim Ark to explain their conclusion that children of aliens born in the US WERE US citizens at birth. But for Waite, ‘there have been doubts’. he did not make a statement one way or the other on the question..
Your posting of a page and a half of his ruling, while failing to show the one sentence of particular relevance to this matter, misleads rather than informs. Ultimately, making claims like this based on selective quoting that don’t hold water even on cursory examination convinces nobody and discredits your conclusions.
The full key quote in context:
“At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that 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. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their
parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts.”
Now who is the delusional one? Waite CONFIRMED at the time the Constitution was written there were 2 types of citizens, born & naturalized:
Congress shall have power “to establish a uniform rule of naturalization.” Thus, new citizens may be born or they may be created by naturalization...
At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that 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...
He then went on to state that the phrase “all person” was an all “comprehensive” term, hence it encompassed the entire family, husband/father, wife/mother & children. Families/households were under but ONE allegiance. Waite then immediately referred to the 1 Naturalization Act of the US Congress which stated:
Under the power to adopt a uniform system of naturalization, Congress, as early as 1790, provided “that any alien, being a free white person,” might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States, being under twenty-one years of age at the time of such naturalization, should also be considered citizens of the United States
What Waite was saying is that under the common law that the framers were familiar with, children follow the nationality of the father and thus unless the father was a citizen, the children were resident aliens and thus either became citizens upon the naturalization of the father or they became a citizen of their own consent when reaching the age to do so.
We are a Nation built on natural law of “CITIZENDHSIP BY CONSENT” not “CONFERRED SUBJECTSHIP” that only exists in Monarchical, Dictatorships & Totalitarian societies.
I realize this is a hard common sense & biblically based concept that goes back to Adam & Eve. A common law rule that was founded in England prior to the feudal doctrines of changing oppressive kings
Clark's (Oxford, England) Discourse on political & social dynamics: "In the Savoy", 1738; "State Trials, Vol 2", London 1809 & Clive Perry, "British Nationality", London 1951
"English nationality was acquired, indelibly, by birth within the realm to parents who were themselves subjects"
and Waite said in Minor:
At common law, with the nomenclature of which the framers of the Constitution were familiar...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
You see, you try to use WKA as your source when WKA doesn't even give the true picture of English subjectship. Gray only cites the feudal doctrine that came centuries after the 1st English constitution was written. The feudal law you cling to is "statute law" not natural law according to Tucker:
common law = ancient, immemorial, unwritten law of England, may be divided into the jus commune
statute law = jura corona, or lex prerogativa, those prerogatives which appertained strictly to the person of the prince; and secondly, such as regarded him in his political capacity, only; as the supreme head and ruler of the nation
Subjectship was a "PEROGATIVE" of the king or prince and there was no consent on the part of the individual, tacit or otherwise. So while you read Blackstone, you neglect to read Tucker's Appendixes that explain why Blackstone's English law is NOT that of the US.
“Waite confirmed no such thing...”
“ who is the delusional one? Waite CONFIRMED at the time the Constitution was written there were 2 types of citizens, born & naturalized”
You must be delusional. This fact is not at issue and is a point I made in comment #100 on this thread a long time back ...
http://www.freerepublic.com/focus/f-chat/2626433/posts?page=100#100
Once again, you make obvious points as if they are novel, and then make novel points that are at odds with basic understanding ...
“What Waite was saying is that under the common law that the framers were familiar with, children follow the nationality of the father”
LOL. I am amazed at how you could so misconstrue what Waite said, and mis-state the common law.
As stated by Tucker ...
“Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it.”
- St. George Tucker,1803, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA.
As James Madison said, it was place, not parenthood that was the primary determination of citizenship at birth in the US:
“It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.”- James Madison, 1789
Certainly the WKA court came to an entirely different conclusion from your claims.
Of course you would HAVE to say that WKA is wrong, since they noted that “every child born in England of alien parents was a natural-born subject”
You say: “You see, you try to use WKA as your source when WKA doesn’t even give the true picture of English subjectship.”
So your argument is with a Supreme Court ruling that has stood as legal precedent for over a century, and you make a claim that contradicts basic and clear statements of the most famous expositor of English common law, Blackstone, by arguing how unimportant the pipsqueak is. Brilliant.
And then this gem...
“We are a Nation built on natural law of “CITIZENDHSIP BY CONSENT” not “CONFERRED SUBJECTSHIP” that only exists in Monarchical, Dictatorships & Totalitarian societies.”
... except for that pesky contradiction to the above, the birthright citizenship clause of the 14th amendment, which grants citizenship, not by consent, but automatically upon being born under the jurisdiction. totalitarian?!?
Meanwhile, nothing in Minor contradicts Wong Kim Ark. The other case, being born to alien parents, “there are doubts” said Minor, not to conclude one way OR THE OTHER.
You are left with pretending that Waite said something he didn’t say, while arguing that James Madison, Justice Swayne and a whole slew of other Justices in the past 150 years have been wrong.
Good luck with that. No wonder birther cases gets tossed out of court. You must as well try repealing the law of gravity.
It might behoove you to actually know who you are quoting. That quote is NOT that of Tucker, the statement comes from his appendix discussing naturalization & was written by a one, George Nicholas, Esq. in reference to the Alien & Sedition Laws and was quoted by Judge Iredel 2 Dallas 373
So basically, you didn't comprehend what you were reading which pertained to the laws of naturalization and 2ndly, you try to use the law of one state, but you don't actually show the text of the law Nicholas was referring to. Virginia's state law, the state of St George Tucker stated:
Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed: And all others not being citizens of any the United States of America, shall be deemed aliens.
Tucker's state adopted the age old common law that children follow the condition of the father and children born to alien fathers were themselves aliens at birth and thus the reason for the language of the Naturalization Act of 1790:
any alien, being a free white person,” might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States, being under twenty-one years of age at the time of such naturalization, should also be considered citizens of the United States
As far as that lame Madison quote you use. It is merely the 1st sentence of a very long speech on the floor of Congress that includes this statement as further explanation of what the topic was about, that a one, Mr Smith who was born before the revolution, thus his citizenship was not determined by birth, but by loyalty to the local society in which he was born into prior to the formation of the union. Hence, Smith was a native, not a natural born:
Mr. Smith founds his claims upon his birthright; his ancestors were among the first settlers of that colony...if he were not a minor, he became bound, by his own act, ... if he was a minor, his consent was involved in the decision of that society to which he belonged by the ties of nature.”
Smith was making his claim that he was a citizen by mere fact of jus soli birthright, however Madison goes on to dispel that claim.
Madison further explains farther into his speech on the floor that Smith being a minor at the time of the Declaration of Independence... Smith's parents died before the revolution was over & the society adopted young Smith, raised him, educated him & sent him overseas to study under Franklin. Ramsay was a fool to try and get him ousted. He was bitter & that is just human nature, but Madison got it right on the law. Smith was a native citizen because the society recognized him as a citizen member of that society at the time of the revolution & his parents death made no change to that status.
So once again, WOSG, you have failed miserably by sheer ignorance to show the entire context of that copy & paste quote mined ignorance.
http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/09-5801_RespondentAmCuIRLI.pdf
audio of arguments: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=09-5801
No. 09-5801 (2010 heard on Nov 10th)
Supreme Court of the United States
RUBEN FLORES-VILLAR, Petitioner
v.
UNITED STATES OF AMERICA, Respondent
BRIEF FOR AMICUS CURIAE
IMMIGRATION REFORM LAW INSTITUTE
IN SUPPORT OF RESPONDENT
excerpt:
The most influential legal commentator on the law of nations was Emer De Vattel and his impact on England, the American colonies, and the Founding Fathers is undisputed.8 Vattel viewed the admission of aliens as a privilege – not a right or a remedy. 1 EMER DE VATTEL, THE LAW OF NATIONS § 213 (Knud Haakonssen ed., 2008) (“The inhabitants, as distinguished from citizens, are foreigners, who are permitted to settle and stay in the country.”). In exchange for permission to “settle and stay,” aliens were “bound to the society by their residence . . . subject to the laws of the state[.]” Id. Such allegiances were required even though a permitted alien did “not participate in all the rights of citizens.” [footnote: For examples of eighteenth century analysis of Vattel, see generally ST. GEORGE TUCKER, A LETTER TO A MEMBER OF CONGRESS (1799)]
Emer De Vattel and his impact on England, the American colonies, and the Founding Fathers is undisputed.
The FR village idiots are also blind.
This Amicus is proof the the US GOVT KNOWS that the 14th "subject of the jurisdiction" means "complete jusrisdiction", both politically & to the laws & born within the borders, all others are citizens by statute or naturalization, including WKA. We'll see what the SCOTUS does with the Kerchner case 2moro. I don't expect we'll hear any news of a decision prior to the holiday though. Look for it to come out next Monday.
“As far as that lame Madison quote you use ...”
A founding father, stating the obvious, is lame to you now. At long last, have you no shame?
Your willingness to ignore and discount the mountain of evidence that children of aliens born in the US are indeed citizens at birth, while engaging in explorations of irrelevent trivia, well that might fool yourself, but real courts don’t cater to the selective and mistaken interpretations of armchair jurists.
Here is what a REAL court has said about matter decades ago - place of birth in US law governs citizenship; your rejection of jus soli is contrary to the US constitution and our laws:
Rogers v Bellei
http://supreme.justia.com/us/401/815/case.html
“Over 70 years ago, the Court, in an opinion by Mr. Justice Gray, reviewed and discussed early English statutes relating to rights of inheritance and of citizenship of persons born abroad of parents who were British subjects. United States v. Won Kim Ark, 169 U. S. 649, 169 U. S. 668-671 (1898). The Court concluded that “naturalization by descent” was not a common law concept, but was dependent, instead, upon statutory enactment. The statutes examined were 25 Edw. 3, Stat. 2 (1350); 29 Car. 2, c. 6 (1677); 7 Anne, c. 5, § 3 (1708); 4 Geo. 2, c. 21 (1731); and 13 Geo. 3, c. 21 (1773). Later, Mr. Chief Justice Taft, speaking for a unanimous Court, referred to this “very learned and useful opinion of Mr. Justice Gray,” and observed
“that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute. . . .”
Weedin v. Chin Bow, 274 U.S. at 274 U. S. 660. He referred to the cited English statutes, and stated, “These statutes applied to the colonies before the War of Independence.”
We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.”
In the end, your argument is not with me at all, but your argument is with the common understanding of 200 years of American jurisprudence. I am just citing what they say.
“Jus sanguines is a genuine affiliation with the nation..jus soli is not.”
The Supreme Court has for some time seen it otherwise.
Justice Scalia, my favorite Justice, understands the natural-born citizen clause to be based on ‘jus soli’....
http://www.oyez.org/cases/2000-2009/2000/2000_99_2071/argument
Justice Scalia: But has not been called natural born citizenship? I mean, isn’t it clear that the natural born requirement in the Constitution was intended explicitly to exclude some Englishmen who had come here and spent some time here and then went back and raised their families in England? They did not want that. They wanted natural born Americans.
Ms Davis: Yes, by the same token ...
Justice Scalia: That is jus soli, isn’t it?
Ms Davis: By the same token ... Congress can’t apply suspect qualifications ...
Justice Scalia: Well, maybe.
I’m just referring to the meaning of natural born within the Constitution.
I don’t think you’re disagreeing.
It requires jus soli, doesn’t it?
Ah, back to argument by silly ad hominem graphics. I guess it’s those pesky little Supreme Court citations that completely obliterate your claims that set you off.
Stay classy.
FYI...court opinions based on English law without reference to the founders actually adopting them is well, baseless. Especially when you put words in the founders mouths that weren’t even theirs, like the supposed Tucker quote that wasn’t even his that I busted you on. Or the parsed Madison cite that is taken completely out of context that you like to throw around. Glad to see you are keeping the standards for the FR Village Idiots alive.
Stay Ignorant
What part of Scalia stating that children born to Englishmen in the US are NOT natural born citizens do you NOT understand?
“All NBCs are citizens, but all citizens are NOT NBCs. Therefore, they are a separate category.”
A seperate category from basic citizenship, yes. But not a seperate category from citizenship persay, since NBC status is a category of citizenship, as everyone knows. You cannot possibly be too dense to see that. Therefore, I assume you’ve drowned yourself in a kiddie-pool of half-truths and rationalizations, and, as such, I can no longer converse with you.
“court opinions based on English law without reference to the founders actually adopting them is well, baseless.”
A) That is a strawman, since ALL court rulings are based on text of Constitution and statutes. You can pretend there is no connection from English common law terminology, but the texts and laws are clear, and the only reason you assert they are not connected there is you simply ignore contrary evidence. Such evidence is abundant. For example, the 1790 Naturalization law was grafted verbatim from a similar English law. Pretending the founders didnt adopt this is what is baseless.
B) Thanks for clarifying that your argument is indeed with “court opinions” that you think are “baseless”.
It’s a pity your response to facts that you don’t like is to plug your ears and call names. Pity you disregard and deride James Madison’s clear statement. Hard to get to truth with that attitude.
You confuse Englishmen with the CHILDREN of Englishmen.
Clearly, “Englishmen who had come here” were NOT born here, they were he ones excluded, and they could never become president even if naturalized US citizens ...
Which part of ‘jus solis’ do YOU not understand?
You confuse Englishmen with the CHILDREN of Englishmen.
Clearly, “Englishmen who had come here” were NOT born here, they were he ones excluded, and they could never become president even if naturalized US citizens ...
Which part of ‘jus soli’ do YOU not understand?
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