Posted on 04/30/2011 12:49:21 AM PDT by djf
Now for this sentence:
“My first question would be ‘How can Supreme Court decisions that happened well after the Constitution was written be deemed a controlling factor in what they actually meant when it was written?’”
I’m just a layman, but as I understand it, judicial review can clarify any questions raised by legislation. Then new legislation can overrule that clarification. The concept of judicial review is not something accepted by all Constitutional scholars.
For those who do believe that judicial review is Constitutional, most of them recognize that any precedent can be overturned by a future court, that a legal decision is no stronger than the weight of its logic.
Maybe I’m wrong, but activist judges challenge precedent — heck, that’s what they live for. What is the logic they use to challenge and/or overturn precedent? They must have some kind of justification. Why can’t original intent be fought for half as vigorously?
“Washington was president of the convention. He soon got a letter from John Jay suggesting that qualifications for the head of the new republic should be more stringent, being a NATURAL born citizen.”
I can back that up with the same link I’ve been referring to:
http://www.birthers.org/USC/Vattel.html
[quote]
John Jay’s letter to Washington address this dual and permanent loyalty to England that Blackstone introduces. To George Washington, President of the Constitutional Convention, Jay writes “Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government ; and to declare expressly that the command in chief of the American army shall not be given to, nor devolve on any but a natural born citizen.” Jay not only knew of Vattel, , as can be seen from his correspondence with James Madison in 1780 during treaty negotiations with Spain, but he was also a proponent of Vattel as well.
[unquote]
“BTW, there is no doubt there is scrubbing going on in the net, I’ve had to make numerous alternate searches for some items because the originals have been deleted. Isn’t that like what nazis do?”
I think much of the “scrubbing” is actually tampering by google and other search engines. They scrub hits. I remember when Google let the chips fall where they may. You could get tons of hits for incredibly narrow searches. You could do a COMPLETE self search of anything you posted.
I miss those days. It makes research much more difficult now, and techonology is supposed to make resarch easier, not the reverse.
I find John Jay to be persuasive myself [post 262].
Furthur, who has the burden of establishing qualification?
The candidate. The state. The voter.
And then the courts I suppose can review whether those qualifications were established, although I personally think it is dangerous for the courts to have so much power.
“But de Vattel DID NOT define “natural-born citizen”! Those aren’t his words! They are ONE WAY to translate that sentence.”
But Vattel also uses the word, “Indigenes”. Did he not make a personal distinction between the two?
And the word, “air force”, which did not exist during the time of our Founding Fathers, is assumed to be part of the military they desired for our defense — the intention of their words was understood. There was no need to amend the Constitution because the concept of an air force is indisputably military. Originalism. A court could theoretically hold a judicial review on whether an “air force” is constitutional. I don’t think Scalia would conclude that we can’t have one.
On the other hand, the court could decide whether a Federal park is Constitutional, or dust bowl prevention. They are not. We clearly need dust bowl prevention, but that should have been amended in the Constitution, not merely legislated.
If you interpret Jay's letter in light of "common law," you see that he's referring to "natural-born" as in, you had to be born here. Chief Justice Waite himself said that at "common law," there was no doubt that if you were BORN HERE to CITIZEN PARENTS, then you were a "natural-born citizen" but there was some doubt as to whether you needed to have citizen parents.
He certainly did. And Chief Justice Marshall's translation in The Venus (1814) was, "The natives, or indigenes,..."
Fenwick's translation (1916) is "Its natives are those who are born in the country of parents who are citizens."
My point, again, is that de Vattel himself never used the phrase "natural-born citizen." That's ONE WAY of translating his French, and it appeared after 1797.
While I heartily commend you and others for the highly intelligent and insightful discussion of Vattel & his enormous importance in helping to define the concepts of the Founding Fathers with respect to a great many questions, I would caution you against the advisability of weakening in any respect qualifications for office, etc.. Given the great loss of cohesion among the existing citizenry in so many of our States & communities, any changes should be in the opposite direction. Let me offer the following--also from Vattel's Law Of Nations (posthumous edition), Book I, Chapter II, Sec. 25, on a foundational point, essential to any good government:
. . .a nation ought to know itself. Without this knowledge it cannot make any successful endeavors after its own perfection. It ought to have a just idea of its state, to enable it to take the most proper measures; it ought to know the progress it has already made, and what further advances it has still to make,--what advantages it possesses, and what defects it labours under, in order to preserve the former, and correct the latter. Without this knowledge a nation will act at random, and often take the most improper measures. It will think it acts with great wisdom in imitating the conduct of nations that are reputed wise and skillful,--not perceiving that such or such practice, though salutary to one state, is often pernicious to another. Everything ought to be conducted according to its nature. Nations cannot be well governed without such regulations as are suitable to their respective characters; and in order to this, their characters ought to be known.
Relevant? Could anything be clearer than that the naturalized Indonesian--if not a deliberate enemy--has no clue as to the true nature of the United States, or their traditions & values; their achievements & the bases for those achievements?
What has he done that is suitable to our character; that is not a random copy of the collectivist policies of very different alien nations?
William Flax
He did, indeed.
Perhaps it was because the question at the bar was whether or not a person, having moved to another country, became a member of it's society, thus causing his possessions to become the spoils of war should hostilities break out between his former country and his current one.
The specifics of the case (found in Book I, § 212 of Vattel) were pertinent. The question of natural-born, found in § 215 of the same section was not.
Sorry. Should read:
Indeed he did not.
Thanks! Great quote. I have yet to finish reading it in it’s entirety. God knows, I have enough other stuff to read.
I’ve had Madisons versions of the Constitutional debates for many years. It’s interesting that each time a Constitutional question comes up, you can look at the notes and odds are you will find something very relevant.
It pays to remember something else about it, that at that time, there was no such thing as a “citizen of the united States”, there were only Citizens of the separate states. Congress had the power to make uniform rules of immigration, but it had NO power to command a State to accept somebody as a Citizen.
This issue is very heart-felt to me. I was born in upstate NY. My mothers family goes back as far as we can trace to the mid 1800’s in New York (immigrants from Germany). We have traced my fathers family back to a man born near the shores of the Hudson river in 1761, we have some evidence he was a Dutch immigrant.
I’ve been to Saratoga, I’ve been to Gettysburg, I’ve stood and looked down at Paul Revere and the Adams graves in Boston.
This is my land.
Now one other item. People keep making reference to “the common law” like they know something about it.
It is often described as “judge made law” which is more of a result than a principle.
Common law is law determined by the usage and customs of the time. It was universally believed to be superior to civil, statutory, or black letter law.
It works this way.
Somebody does you some kind of wrong, an actual injury or deprivation of your rights.
You file a pleading or writ with the court.
The court then either empowers a jury or finds out the facts and makes a decision.
Thus, there is no such thing as an ambiguous law or victimless crime under common law. (that last statement is not entirely correct, for instance prostitution has been recognized as criminal in most jurisdictions for a long time).
There are writs that deal with all sorts of things. Property, heredity, duties, etc.
An example would be there have been a few times in various states when the statutes against murder were accidentally allowed to expire or were repealed, that kind of thing.
But people were still tried, they were still convicted, because the law is not something that is written in the books, it is the things that are in our hearts, the way we try to live our lives as just and honorable men.
Statutes are EVIDENCE of the law. Court decisions are also EVIDENCE of the law.
Anyways, I’ve rambled on enough. If you can get a copy of “Common Law” by Roscoe Pound, it is well worth having. And you might be able to do a Google of “forms and action at common law” and get some good hits.
The common law was never intended to be generally used by our federal government on a national basis.
From the first legal treatise written after Ratification [and used as evidence in the recent RKBA Keller vs. District of Columbia case]
Fifthly. … That neither the articles of confederation and perpetual union, nor, the present constitution of the United States, ever did, or do, authorize the federal government, or any department thereof, to declare the common law or statutes of England, or of any other nation, to be the law of the land in the United States, generally, as one nation; nor to legislate upon, or exercise jurisdiction in, any case of municipal law, not delegated to the United States by the constitution.
Of the Unwritten, or Common Law of England; And Its Introduction into, and Authority Within the United American States
View of the Constitution of the United States
St. George Tucker, 1803
------
See! Now you have even MORE to read.
[grin]
Lol!
Indeed.
There are standing decisions that say “there is NO general federal common law”.
The common law is in the States.
The federal government is entirely a creature of the Constitution.
Thank you for admitting you are an anti-American scumbag.
The Venus decision used Vattel because it involved INTERNATIONAL LAW.
I guess Justice Scalia and every other textualist must be an “anti-American scumbag” too. Think before you write.
Yes. And I stumbled upon a letter from Jefferson to somebody, a while back, in which he basically took the view that the people in a local community had a right to determine whom might live there. I have not been able to relocate the piece. Have you ever come across it? The point is significant, if you remember that various communities were founded originally by people who wanted a specific haven for those who thought as they did on various subjects (ordinarily theological, of course, but the same principle would apply to other social issues). My point is that not only is all this "diversity" clamor on the Left ridiculous, we were actually expected to have a right to insulate ourselves from the idea of an undifferentiated humanity.
My current feature at my website Gulliver Discovers America touches on the point, as do many other items at my venue--some more directly.
As for your upstate New York heritage, I spent a number of summers in my youth at a camp run by a forestry professor from Syracuse, where we went without most of the modern conveniences, at a site only reachable by boat, where we had to wash & brush our teeth in the lake, etc., while learning what one needed to know to survive in the woods. So while I would not be very happy in the New York City area, I am well aware that there are very Conservative & congenial folk in some upstate communities.
Cheers.
Bill Flax
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