Posted on 04/30/2011 12:49:21 AM PDT by djf
Lately, we have been bombarded by various people trying to say what is was/wasn't that Vattel had to say, and whether his opinions mattered
or were even known to the founders and early America.
So I did a bit of research.
Emmerich De Vattel was born 1714 of Swiss parentage. At an early age he became interested in literature and philosophy. Now there are much better and detailed biographies on the web, so I won't bore everybody with all the details I read. Suffice to say he spent many years with positions provided by the courts (the royal courts) and composed a number of works.
He was deeply influenced by an earlier work called "The Law of Nations" by Christian Wolfe, the problem with the earlier work being that it had been composed in Latin and was not a work for general use.
He (Vattel) completed his first edition of "Le Droit des Gens, ou Principes de la Loi Naturelle", or what we now call "The Law of Nations" in 1758.
It was a two volume work.
He died in 1767, in what I believe was France, though I haven't verified it yet.
Now the arguments about using Vattel as a reference have taken a couple forms. First, there seems to be an argument that he was perhaps a more obscure reference at that time and was not internationally accepted.
Another argument is that he never used the exact term "natural born citizen", so that what he was speaking of does not apply.
A little study of history show that both arguments fail miserably.
Vattel was aware of what was happening in America before his death. At least in terms of the settling of America.
At the end of Chapter XVIII, Occupation of a Territory by a Nation, he says "However we can't help but admire the moderation of the English Puritans who were the first to settle New England. A;though they bore with them a charter from their sovereign, they bought from the savages the lands they wished to occupy. Their praiseworthy example was followed by William Penn and the colony of Quakers that he conducted into Pennsylvania"
Vattels work was known in Europe and to the founders that had traveled there. There are a number of historical references that prove that which the reader can find on his own.
In 1775, eight years after his passing, Charles Dumas, a Swiss living in Holland, brought out a new edition and sent 3 copies to Benjamin Franklin. Franklin wrote "It came to us in good season, when the circumstances of a rising State make it necessary frequently to consult the Law of Nations". This was in December, 1775.
The founding fathers were aware of and impressed by Vattels mentions of New England and Pennsylvania, and took it to heart. The work became an almost instant classic in pre-revolutionary Ameria.
By 1780 his work was considered a classic and was a textbook at the best universities.
So did the founders really know of the work?
They knew of it enough so that it is quoted in Supreme Court decisions even before the Constitution was written or ratified. In Miller v. The Cargo of the Ship Resolutions, the court said "Vattel, a celebrated writer on the laws of nations, says, 'when two nations make war a common cause, they act as one body, and the war is called a society of war; they are so clearly and intimately connected, that the Jus Postliminii takes place among them, as among fellow subjects.'" This decision was by the Federal Court of Appeals, Aug, 1781. Cited as 2 US 1 or 2 Dall 1
We see that not only was it known to the founders, it was already being used in the universities and quoted as operative law in the fledgling courts of the United States justice system.
So. What exactly did he say?
First, anyone who reads the item whether translated or in the original French has to admit he never used the exact phrase "natural born citizen".
But!!! On reading what he said, the wording and the context, there can be no doubt at all of EXACTLY what he meant.
I shall here cite the section in English and in the original Francais.
The section is from Chapter XIX, entitled "One's Country and various matters relating to it". Sec. 212, Citizens and Natives. It is on pps.
87 of the english translation.
"The members of a civil society are it's citizens. Bound to that society by certain duties and subject to it's authority, they share equally in the advantages it offers. Its natives are those who were born in the country of parents who are citizens. As the society cannot maintain and perpetuate itself except by the children of it's citizens, these children naturally take on the status of their fathers and enter upon all the latters rights. The society is presumed to desire this as the necessary means of its self-preservation, and it is justly to be inferred that each citizen, upon entering into the society, reserves to his children the right to be members of it. The country of a father is therefore that of his children, and they become true citizens by merely tacit consent. We shall see presently whether, when arrived at the age of reason, they may renounce their right and the duty they owe to the society in which they are born. I REPEAT THAT IN ORDER TO BELONG TO A COUNTRY ONE MUST BE BORN THERE OF A FATHER WHO IS A CITIZEN; for if one is born of foreign parents, that land will only be the place of one's birth, and not one's country."
(the above is from: Les droit des gens, Translation of the 1758 edition, Charles G. Fenwick, published Carnegie Institute of Washington,
Washington, 1916.
En Francais.
Les citoyens sont les membres de la Societe Civile; Lies a cette Societe pars certains devoirs, & formie a son Autotiteil particiant avec egalite a les avantages. Les NATURELS, ou INDIGENES, sont ceux qui sont nes dans le pays, de Parens Citoyens. La Societe ne pouvant se soutenir & se perpetuer que par les enfans des Citoyens; ces enfans y suivent naturellement la conditionn de leurs Peres, & entrent dans tous leurs droits. La Societe est cenflee le vouloir ainfi; par une suite de ce qu'elle doit a la propre confervation; & l'on presume de droit que chacque Citoyen, en entrent dans la Societe; reserve a les enfans le droit d'en etre membres. La Patrie des Peres est dons celles des enfans & ceux-ci deviennent de veritables Citoyens, par leur simple consentement tacite. nous verrons bien-tot; si parvenus a l'age de raison, ils peuvent renoncer a leur droit, & ce-qu'ils doivent a la Societe dans laquelle ils sont nes. Je dis que pour etre d'un pays, IL FAUT ETRE ne D'UN PERE CITOYEN; car si vous y etes ne d'un Etranger, ce pays sera seulement le lieu de votre naissance, sans etre votre Patrie"
Note: The above is from the 1758 edition. As with early American English, it was common to write an "S" as an "f". I have tried with my limited knowledge of French to make the corrections, and think this is pretty darn close to the original.
Another note: Vattel uses the phrase "Les Naturelles ou Indigenes" which pretty much translates to "The naturals or natives"
_____________________________________________________________________________________________________________________
Now I doubt anyone can read the above and not know EXACTLY what the founders meant by "natural born citizen". They wanted someone who, in Vattels words, "Belong(ed) to the Country, which means a person born on the soil of parents who were citizens, at the very least born on the soil OF A FATHER who IS A CITIZEN!
If Obama was born in Hawaii, were both his parents Citizens? No. Was Obamas FATHER a citizen? No.
Does Obama "Belong to the Country?"
Vattel, and the founders of our great Republic, would have to say no.
There are US legal precedents that occurred prior to Ratification under the Articles of Confederation that rather precisely underscore the points I've attempted to convey to you. However, to go to the effort to provide them to you, it is becoming increasingly evident, will be a waste of time and effort, since you are utterly incapable of recognizing that the defining qualities of a natural born citizen, as written by Chief Justice Morrison Remick "Mott" Waite, do not correspond at all to the English common law defining qualities of a natural born subject, as understood in the modern era primarily via William Blackstone's Commentaries.
Absurd! Are you honestly willing to go that far to defend your belief that BHO II isn't eligible to be POTUS?
What is the "law of nations," anyway? Perhaps if we describe it differently, it will become clear: public international law (i.e. FOREIGN law).
Justice Scalia has made it clear that he "[does] not use foreign law in the interpretation of the United States Constitution."
You can call it "natural law" or the "law of nations" all you like, but at the end of the day, you're using "public INTERNATIONAL law," and that makes you closer to Justice Breyer than Justice Scalia. That doesn't make you wrong, but it does mean you're no longer a conservative.
Common law is case law, end of story. If you want to say that the "common law" Chief Justice Waite mentioned in Minor isn't English common law, fine. Provide a case between 1776 and 1788 showing that we moved away from the English common law definition of "natural-born subject" to de Vattel's "les naturels."
It appears you are hungup on the problem of not understanding the origins of American common law.
Holding out on us, eh? Hey, if "there are US legal precedents that occurred prior to Ratification...that...underscore [your points]" (i.e. cases), find them. That's what you need to show that Chief Justice Waite was referring to "something other than English" common law. Paraphrasing your points won't do it.
I repeat Justice Scalia's comments in oral argument: "[T]he meaning of natural born within the Constitution...requires jus soli." Unless Justice Scalia is now an Obamanut, the issue ought to be resolved.
Justice Scalia said, “The common law is gone. The federal courts never applied the common law and even in the state courts it’s codified now.”
Quite possible. But I do know the following are not in dispute:
From my perspective, I see people who are desperately clinging on to the belief that BHO II isn't a "natural-born citizen" to the point where they are willing to move closer to Justice Breyer than Justice Scalia in treating "the law of nations" (read: public international [foreign] law) as American common law.
Folks, get over it. If Justice Scalia is stating that "the meaning of natural born within the Constitution...requires jus soli," I have very little doubt that he is wrong, given his status as the Court's staunchest defender of originalism. Some of y'all don't like our current citizenship laws. Fine, but y'all should be pressing for a Constitutional amendment to change our nationality laws to be closer to those of, say, Switzerland, where jus soli doesn't exist at all.
The essay is stitched together from the work of others, along with my own additions and changes. Getting the truth out is what matters here.
Your claim of items not being in dispute are erroneous and false. You lack an understanding of the origins of American common law and its role or lack of role in the Federal courts and their jurisdiction. You are also falling prey to the problem of giving wrongful authority to SCOTUS decisons not decisive of the question regarding the definition of natural born citizen while disregarding the many instances in which contradictory opinions of equal and greater weight do define the phrase as described by Vattel.
It's funny. I managed to find the supposed original source of that statement here, but there's no recorded transcript, and Googling the phrase quickly reveals that almost every page that uses it is pro-birther.
I'd like to know the context in which Justice Scalia said that, because he has also said
What's English law? Common law, as contrasted to civil law: "...Europe's two major legal traditions, the civil law of the continental countries and the common law of England, Wales and Ireland" (Source).
Besides WhiskeyX, suppose we both take Justice Scalia's comment on common law at face value. Then, you still have to accept what Justice Scalia said in oral argument about "natural-born citizenship" or explain why he's wrong. You can't pick and choose based on what you like, and if what we're really talking about is what "natural-born citizen" means, then Justice Scalia is not on your side.
Which item or items do you dispute? Are you saying that
You are also falling prey to the problem of giving wrongful authority to SCOTUS decisons not decisive of the question regarding the definition of natural born citizen while disregarding the many instances in which contradictory opinions of equal and greater weight do define the phrase as described by Vattel.
Which SCOTUS decision is decisive of the question regarding the definition of "natural-born citizen"? If there were one prior to 1875, Chief Justice Waite would've cited it in Minor. In fact, when it came to "resort must be had elsewhere to ascertain that," he would've cited such a case. He did not. And neither did Justice Gray in 1898. The existence of such a case would've precluded Justice Gray from his lengthy and comprehensive analysis of English common law, would it have not?
Why are we even continuing this discussion? Unless one of you wants to argue that Justice Scalia is wrong; an Obamanut; or even better, when he said, "the meaning of natural born within the Constitution...requires jus soli," he meant something else, the issue is settled.
Have you read your sources? Your first one, a paper titled "The Federal Common Law of Nations," seems to lend credence to your view until one reads the first sentence of the abstract: "Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law?"
You were saying something about the law of nation's not being foreign law?
Your second source, an essay by Samuel Gregg, uses the phrase "common law" once: "By the eighteenth century, concepts of the ius gentium as the common law of humanity, or customs shared by almost all peoples,..." That is, in context, he is not talking about common law as contrasted to civil law. He is not talking about common law, the legal system. He is talking about "customs shared by almost all peoples."
Your third "source" just Googles "common law" and "Law of Nations."
And your last source, come on. Look at the title for crying out loud: "The Meaning And Scope of The Law of Nations in The Context of The Alien Tort Claims Act And International Law." If that weren't obvious enough, move to page 228 of the article: "Since the United States came into being, the prevailing view among U.S. courts has been that the law of nations is in fact customary international law that has become part of the domestic common law."
So yes, the "law of nations" is "customary international law." No, it is not "common law." Yes, it is a PART of "common law."
Sheesh. And for the upteenth time, all of this is moot unless you think Justice Scalia is wrong; an Obamanut; or didn't actually mean what he said when he said that, "the meaning of natural born within the Constitution...requires jus soli."
Your exclusionary interpretation of Scalia's comments in oral argument, that you have cited, would have Justice Scalia ruling John McCain ineligible, had such a matter been put before him. You apparently fail to realize that.
Maybe reposting an oldie but goodie from two years ago might help, not you specifically but others who are silently reading along and scratching their heads at the internal inconsistencies of your argumentation:
What is a "Natural Born Citizen?"
By P.A.Madison
UPDATED 3/4/09
What might the phrase “natural-born citizen” of the United States imply under the U.S. Constitution? The phrase has always been obscure due to the lack of any single authoritative source to confer in order to understand the condition of citizenship the phrase recognizes. Learning what the phrase might have meant following the Declaration of Independence, and the adoption of the Fourteenth Amendment, requires detective work. As with all detective work, eliminating the usual suspects from the beginning goes a long way in quickly solving a case.
What Natural-Born Citizen Could Not Mean
Could a natural-born citizen simply mean citizenship due to place of birth?
Unlikely in the strict sense because we know one can be native born and yet not a native born citizen of this country prior to the year 1866. There were even disputes whether anyone born within the District of Columbia or in the territories were born citizens of the United States (they were generally referred to as “inhabitants” instead.) National Government could make no “territorial allegiance” demands within the several States because as Madison explained it, the “powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
Jurisdiction over citizenship via birth within the several States was part of the “ordinary course of affairs” of the States that only local laws could affect. Early acts of Naturalization recognized the individual State Legislatures as the only authority who could make anyone a citizen of a State. Framer James Wilson said, “a citizen of the United States is he, who is a citizen of at least some one state in the Union.” These citizens of each State were united together through Article IV, Sec. II of the U.S. Constitution, and thus, no act of Congress was required to make citizens of the individual States citizens of the United States.
Prior to the Revolutionary War place of birth within the dominions of the crown was the principle criterion for establishing perpetual allegiance and citizenship. After independence each State was free to establish their own maxims on the subject. James Madison’s own State of Virginia adopted a birthright law authored by Thomas Jefferson that recognized parentage (citizenship of father) in determining citizenship of the child, as well as recognizing the right of expatriation - something unheard of under the common law. States that were slow in enacting laws over acquiring citizenship through birth forced courts to adjudicate citizenship disputes under common law rules.
Congress was vested only with the power to make uniform rules of naturalization in order to remove alienage from those who were already born abroad (outside of the States) who had immigrated to any one of the individual States. The best Congress could do is declare children born abroad to fathers who were already a citizen of some State to be a citizen themselves. In other words, naturalization only provides for the removal of alienage and not for the creation of citizens within individual States.
Additionally, if the framers merely intended for birth alone on U.S. soil, or understood birth alone bestowing unconditional citizenship to anyone, then all would had been necessary was to say the President shall be “native born.” But whether someone might just be native born or born a citizen only State law or custom could determine.
Could a natural-born citizen perhaps be synonymous with the British term “natural-born subject”?
It is very doubtful the framers adopted the doctrine found under the old English doctrine of “natural-born subject.” The British doctrine allowed for double allegiances, something the founders considered improper and dangerous.
Framer Rufus King said allegiance to the United States depended on whether a person is a “member of the body politic.” King says no nation should adopt or naturalize a person of another society without the consent of that person. The reason? Because “he ought not silently to be embarrassed with a double allegiance.”
The powers of the general government were limited and defined, preventing Congress from exercising the same kind of sovereignty that Britain had over its claimed dominions within established States of the Union.
Under the old English common law doctrine of natural-born subject, birth itself was an act of naturalization that required no prior consent or demanded allegiance to the nation in advance. Furthermore, birth was viewed as enjoining a “perpetual allegiance” upon all that could never be severed or altered by any change of time or act of anyone. England’s “perpetual allegiance” due from birth was extremely unpopular in this country; often referred to as absurd barbarism, or simply perpetual nonsense. America went to war with England over the doctrine behind “natural-born subject” in June of 1812.
Because Britain considered all who were born within the dominions of the crown to be its natural-born subjects even after becoming naturalized citizens of the United States, led to British vessels blockading American ports. Under the British blockade, every American ship entering or leaving was boarded by soldiers in search of British born subjects. At least 6,000 American citizens who were found to be British natural-born subjects were pressed into military service on behalf of the British Empire, and thus, the reason we went to war.
Fourteenth Amendment
Whatever might had been the correct understanding of “natural-born citizen” prior to 1866, the adoption of the Fourteenth Amendment certainly changes the view because for the first time we have a written national rule declaring who are citizens through birth or naturalization. Who may be born citizens is conditional upon being born “subject to the jurisdiction” of the United States - a condition not required under the common law. The legislative definition of “subject to the jurisdiction thereof” was defined as “Not owing allegiance to anybody else.”
This national rule prevents us from interpreting natural-born citizen under common law rules because it eliminates the possibility of a child being born with more than one allegiance.
The primary author of the citizenship clause, Sen. Jacob M. Howard, said the “word jurisdiction, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”
United States Attorney General, George Williams, whom was a U.S. Senator aligned with Radical Republicans during the drafting of the Fourteenth Amendment in 1866, ruled in 1873 the word “jurisdiction” under the Fourteenth Amendment “must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment.” He added, “Political and military rights and duties” do not pertain to anyone else.
Essentially then, “subject to the jurisdiction thereof” means the same jurisdiction the United States exercises over its own citizens, i.e., only citizens of the United States come within its operation since citizens of the United States do not owe allegiance to some other nation at the same time they do the United States. This makes a great deal of sense for the time because there was a great deal of controversy over conflicts arising from double allegiances. In fact, Congress issued a joint congressional report on June 22, 1874 that said the “United States have not recognized a double allegiance.”
Just as a person cannot be naturalized and subject to the jurisdiction of the United States while owing allegiance to another nation, neither can anyone born. Why would “subject to the jurisdiction thereof” be any different with persons born since this jurisdiction equally applies to persons born or naturalized? In other words, the words do not exempt persons born from the same allegiance requirements of persons naturalized.
It is worth noting that wives and children were never naturalized separately but became naturalized through the father/husband.
Because “subject to the jurisdiction thereof” requires not owing allegiance to any other nation, and because the nation does not recognize double allegiances that can be created at common law, narrows the possibilities to what “natural-born citizen” can mean.
Natural-Born Citizen Defined
One universal point most all early publicists agreed on was natural-born citizen must mean one who is a citizen by no act of law. If a person owes their citizenship to some act of law (naturalization for example), they cannot be considered a natural-born citizen. This leads us to defining natural-born citizen under the laws of nature - laws the founders recognized and embraced.
Under the laws of nature, every child born requires no act of law to establish the fact the child inherits through nature his/her father’s citizenship as well as his name (or even his property) through birth. This law of nature is also recognized by law of nations. Sen. Howard said the citizenship clause under the Fourteenth Amendment was by virtue of “natural law and national law.”
The advantages of Natural Law is competing allegiances between nations are avoided, or at least with those nations whose custom is to not make citizens of other countries citizens without their consent. Any alternations or conflicts due to a child’s natural citizenship are strictly a creature of local municipal law. In the year 1866, the United States for the first time adopted a local municipal law under Sec. 1992 of U.S. Revised Statutes that read: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”
Rep. Bingham commenting on Section 1992 said it means “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.” (Cong. Globe, 39th, 1st Sess., 1291 (1866))
Bingham subscribed to the same view as most everyone in Congress at the time that in order to be born a citizen of the United States one must be born within the allegiance of the Nation. Bingham had explained that to be born within the allegiance of the United States the parents, or more precisely, the father, must not owe allegiance to some other foreign sovereignty (remember the U.S. abandoned England’s “natural allegiance” doctrine). This of course, explains why emphasis of not owing allegiance to anyone else was the affect of being subject to the jurisdiction of the United States.
Chairman of the House Judiciary Committee, James F. Wilson of Iowa, added on March 1, 1866: “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 … children born on our soil to temporary sojourners or representatives of foreign Governments.” The phrase “temporary sojourners” referred to those in the country for purposes of work, visiting or business and who had no intention of taking the steps to become citizens, or incapable by law.
The constitutional requirement for the President of the United States to be a natural-born citizen had one purpose according to St. George Tucker:
That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to he dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. … The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora’s Box.
Charles Pinckney in 1800 said the presidential eligibility clause was designed “to insure … attachment to the country.” President Washington warned a “passionate attachment of one nation for another, produces a variety of evils,” and goes on to say:
Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest, in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter, without adequate inducement or justification. It leads also to concessions to the favorite nation, of privileges denied to others, which is apt doubly to injure the nation making the concessions; by unnecessarily parting with what ought to have been retained; and by exciting jealousy, ill- will, and a disposition to retaliate, in the parties from whom equal privileges are withheld.
And it gives to ambitious, corrupted, or deluded citizens, (who devote themselves to the favorite nation,) facility to betray or sacrifice the interests of their own country, without odium, sometimes even with popularity; gilding, with the appearance of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation.
What better way to insure attachment to the country then to require the President to have inherited his American citizenship through his American father and not through a foreign father. Any child can be born anywhere in the country and removed by their father to be raised in his native country. The risks would be for the child to return in later life to reside in this country bringing with him foreign influences and intrigues, thus, making such a citizen indistinguishable from a naturalized citizen.
Therefore, we can say with confidence that a natural-born citizen of the United States means those persons born whose father the United States already has an established jurisdiction over, i.e., born to father’s who are themselves citizens of the United States. A person who had been born under a double allegiance cannot be said to be a natural-born citizen of the United States because such status is not recognized (only in fiction of law). A child born to an American mother and alien father could be said to be a citizen of the United States by some affirmative act of law but never entitled to be a natural-born citizen because through laws of nature the child inherits the condition of their father.
That's not intellectually honest. I don't debate those who aren't intellectually honest.
(1) By basing your thinking on one quote of Justice Scalia's you are attempting to hang a tractor trailer load of rubble on a $1 dry cleaner's shirt hanger. Questions asked during the Supreme Court hearings must be viewed as investigative and rhetorical devices and NOT AT ALL as statements of Judicial fact or assertions of a Judge's opinion of law.
(2) I, for one, would NOT call Justice Scalia the "staunchest defender of originalism". Nor am I sure what anyone means by "originalism". I do think that Justice Thomas tends to be, in his written opinions, the closest to what I think the Founders intended in their exceptionally careful crafting of the Constitution.
However, imo, both Scalia and Thomas have run afoul of Original Intent in some rulings. Scalia especially seems to prefer a Frankfurtian view of plenary legislative authority that is not reviewable by the Judiciary under some curious modern interpretation of the separation of powers doctrine. It is irresponsible. Such cases are difficult, and can produce bad precedent, but ignoring clear abuses of authority by the Legislative or Executive branch breeds yet more and more irresponsibility.
In Scalia's world-view, it seems to me too, judicial precedent--stare decisis--is far more important than the clear meaning of the Constitution. This is NOT "Rule of Law", it is "Rule of Process of Law", stare decisis being all process. Pure Process, however is wholly irresponsible. It lacks the commander's judgement. The ripeness of any judgment is only at the current time, only the responsible make proper rulings--a Judge of a case a decade ago, a century ago, even a great Judge--can only provide GENERAL wisdom and guidance. In a great battle of a war the commander must be free to make a decision set to that exact circumstance and not be bound to follow some detailed recipe extracted from recollections and historical redactions a prior victory. So to Judge--and a Jury--must have the freedom to rule according to the written code of law per their own freely made and hopefully earnestly considered and honest understandings of who that law applies to the instant case.
Mr. Scalia gives the cookbook of case law too much authority in the kitchen. Fine for a average low-wage cook at some chain restaurant, when that chain has some real chefs in it, chefs who COOK per the particular conditions of the stock in the larder and refrigeration unit, the weather, and the tastes of the crowd that night. If, however the chain keeps no real chefs, but makes all cook to some standard cookbook, in a few years the chain fails.
A real chef loves a good cookbook far more than the drone who follows it mindlessly. A real chef treats that cookbook only as general advice. With each night, each new batch of fresh meats and vegetables, the recipes must be adapted. Judgment must have command.
Not necessarily. Justice Scalia said "the meaning of natural born within the Constitution...requires jus soli." He did not say anything further which would lead one to conclude that he believes ONLY those who obtained their citizenship by jus soli are natural-born, which is what you are saying.
Maybe reposting an oldie but goodie from two years ago might help, not you specifically but others who are silently reading along and scratching their heads at the internal inconsistencies of your argumentation:
I'm still waiting on those "US legal precedents that occurred prior to Ratification under the Articles of Confederation" that you mentioned earlier. Your "oldie but [a] goodie" isn't one of them, now is it?
Did I, now? Let's see. You originally said, "For the Federal government and the Federal courts, "common law" is "the law of nations."" I replied by noting that "the law of nations" is simply a "nicer" way of saying "public INTERNATIONAL law." You balked and wrote, "The "law of nations" is not a synonym for "foreign law.""
I proceeded to check your sources and found that
You originally stated, and I quote, "For the Federal government and the Federal courts, "common law" is "the law of nations."" You then provided four sources to back up that claim. You also insisted that, and I quote, "The "law of nations" is not a synonym for "foreign law.""
But your first source blatantly references "customary international law" and asks to what it extent it should be considered "federal common law"? Your second source doesn't even have anything to say about common law as we understand it in the context of this discussion. (You are talking about case law and not "customs shared by almost all peoples," yes?) And your fourth source directly contradicts everything you say. "The law of nations" IS IN FACT "customary international law," the same three words used in your first source, and it is only PART OF "domestic common law."
So no, I didn't twist or misinterpret anything you said or anything your sources said. I simply checked your claims and found them wanting. If that makes me intellectually dishonest, well, I guess honesty is not your strong suit.
You presume to be in some position to make demands. You’re actually not in any such position, for the reasons stated upthread. If you were actually interested in learning anything, rather than regurgitating by rote, I might reconsider. I’ve seen no evidence thus far that you are, however, so bite me, if you’ll pardon the colloquialism.
The American common law developed very differently while in use with colonial and state governments, and the Federal courts made decisions upon Federal codified statutory laws. The American common law originated in parts from English common law principles, American colonial and state case law and principles, American interpretations of natural law philosophy, principles of international law, and more. While English common law was an important founding influence upon American common law, the American judiciary and legislatures abandoned, abrogated, and supplanted most of what little was known to the Americans in an age where little more than the summaries of the principles were available in print to the American colonists and Constitutional Convention.
Using their personal experience with the English, Dutch, French, German, Roman, and other legal systems from the American colonies, Europe, and other European colonies, the Americans made a new common law unique in many aspects. It was only later in the mid to late 19th Century that published volumes of common law decisions became widely avaiable enough for jurists to make routine comparisons of the case law of the American courts to the case law of the foreign courts of England and elsewhere.
That's not an opinion; that's a fact. Justice Scalia does not practice "original intent"; he practices "original meaning." In fact, he has publicly stated, "You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words." (Speech).
Your entire post is a defense of the merits of civil law over common law. Civil law may indeed have pros over common law, but we're not a civil law nation; we're a common law nation, and it doesn't appear to be changing anytime soon. And I find your characterization of Justice Scalia's worldview, "judicial precedent--stare decisis--is far more important than the clear meaning of the Constitution," to be quite interesting, as it is not how Justice Scalia describes his own worldview. He doesn't care about INTENT; he cares about how "words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used." (Justice Holmes's definition of "textualism.")
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