Posted on 04/30/2011 12:49:21 AM PDT by djf
Let's not forget what our discussion was about. You insisted that when Chief Justice Waite wrote of "common law," he was referring to "something other than English" common law. (Could you have been any more vague?) I pressed you on this, and you soon insisted that "There are US legal precedents that occurred prior to Ratification under the Articles of Confederation" and which supported your position.
Well, which cases? You didn't list them then, and you're not listing them now. Maybe they do exist, but until you find them, your argument is weak. Seriously though, "something other than English"? I don't see how that can convince anyone who wasn't already convinced.
That begs the question of how you could possibly understand the source of the natural born citizen clause when you apprently do not understand the origin of the American common law and other American law from which they arose using various available legal sources of the time period?
You then disagreed and said "Your claim of items not being in dispute are erroneous and false." Well, which ones, I asked? You then gave me a post which did not address any of the items I listed. I pointed this out, and still you are not pointing out which of the items I listed you believe ARE in dispute.
Not defensive in the least, just over it, as far as attempting to convey information to you. Funny you purport yourself to have been manning some rampart since 2008 when your presence on any eligibility thread has been negligible. You know no argument by heart, you've tugged no loose "strands," neither here nor there. You do, however, deserve such an abrupt and crude rejoinder. You are not sincere, you latch onto snippets and launch into some strange soliloquy that has no relation to the comment to which you've purported to respond.
It's tiresome and it's pointless, and so I leave you to your tangential commentary and your very poor understanding of the English common law to which you consistently and constantly defer.
It is hard to see how you would have the ability to understand a response to your other questons, when you seem to be unable and/or unwillking to undrstand the fundamental legal systems and principle supon which they are based and their historical antecedents. You are trying to cite SCOTUS justices without an apparent awareness of the limits of their authoritativeness.
Prior to BHO II's releasing his "long form" birth certificate last week, the last time I discussed with a birther on FR was back in August 9, 2009. I got the same response from savedbygrace as I got from you: an insistence that you've got case law on your side followed by an inability to produce the goods and finally, a remark that it's not worth your time to continue discussing with me.
I understand that you'd think I'm annoying based on my questions and "demands," but from my perspective, both of you claimed to have goods and then failed to (or refused to) deliver.
I'll make it easy for you: None of the items I listed is in dispute, so you don't have to answer my question. NBC isn't defined in the Constitution; Chief Justice Waite did observe that resort must be had elsewhere, and he did refer to "common law"; and Justice Scalia did say in oral arguments to Tuan Anh Nguyen that "the meaning of natural born within the Constitution...requires jus soli."
Now, you may very well dispute whether Chief Justice Waite was correct to refer to "common law," and you can even dispute which "common law" Chief Justice Waite referenced. (Though a reply of "something other than English" is laughably weak.) You can also dispute whether it matters what Justice Scalia said in oral arguments. But then you aren't disputing items I listed, are you?
In 2004 in Sosa v. Alverez-Machain the Supreme Court recognized that there were areas of overlap between common law and the law of nations and held that in those areas one looks particularly to Vattel as authority. Justice Story's opinion in Shanks v. Dupont makes clear that citizenship is such an area as does Marshall's opinon in The Venus which specifically quotes the language of Vattel in question.
Moreover, contrary to your earlier post, Waite, in Minor v. Happersett specifically says that it is doubtful at common law if the Article II phrase goes beyond meaning born in the oountry of parents both of whom are citizens. Further, it is clear at the time of the Framers that patrimony was the most important component of lineage however politically incorrect that may be now.
In addition it is quite clear that the meaning of the Article II phrase was not before the court in Wong Kim Ark. It was not among the questions presented and is never mentioned in the briefing. And Gray engaged in the generalities tha he did because he was trying to protect Arthur, who had appointed him. He was in the position of Sotomayor and Kagan today. Arthur was under pressure in several political quarters because his father was not a U.S. citizen when he was born and, like Obama, he was fighting to suppress the issue.
Here is an index to references to Vattel during the Framers' debates: http://rs6.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr003452%29%29 They seem to refute your contentions.
OK.
Lets look at the exact quote.
I have not read the full case, so do not know the particulars. But I’m fairly good with the English language.
“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. “
What did he say?
First, he does make a reference to common law. Whether it is British common law or American common law, he does not state. So to say that this is an absolute reference to British common law is NOT supported by what he said.
Second.
“it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.”
OK, we can all agree with that.
Third.
“These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”
OK, we can all agree to that.
Fourth. Here comes the monkey bar.
“Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents.”
Hmm. He doesn’t say which authorities. But he does here admit that there is a difference of opinion somewhere. Now he has absolutely said by the third part here that people born in the country of citizen parents WERE INDEED natural born citizens. By his statement saying “it was never doubted” he’s saying the court agrees with at least this part of the interpretation.
Fifth
“As to this class there have been doubts, but never as to the first.”
Once again he is confirming that persons born of parents who are citizens ARE natural born citizens, he is also repeating that there is a dispute about the second class, “children born within the jurisdiction without reference to the citizenship of their parents”
Finally...
“For the purposes of this case it is not necessary to solve these doubts.”
OK. You were just TOLD by the source you CONTINUALLY QUOTE that the court DID NOT RESOLVE THE ISSUE AT THIS TIME.
The court basically said DO NOT DRAW ANY CONCLUSIONS about the class of people who are currently the issue, ie children (possibly) born of alien parents.
The entire point of him saying that there was “doubt” shifts the burden of proof, and the court said it was simply not going to deal with it now, and the ball is back in your (or someone elses) court.
It seems what we need in light of all the possible birth scenarios you note is just a widly casted notice that if you (father and/or mother) want your child to grow up and be POTUSA you should/must make certain there is no doubt as to parentage. Perhaps this is what the Founding Fathers were wanting to say along with the child being bedrock naturally born. Just another way of looking at the situation.
... and the entire cite flies in the face of any attempt to classify it as having resulted from any understanding under English common law. I’ve thrown in the towel as far as trying to get this across to our very persistent FRiend.
The English common law would have every individual born in the realm a natural born subject. Waite casts doubt upon the very understanding that our FRiend would have us accept uncritcally as the very foundation of the term of art.
There was and clearly is still an element of heredity involved in natural born citizenship, in addition to birth within the Republic.
Direct Quote: "...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?"
I don't think Justice Scalia was talking about "a child born here." He was talking about an "Englishm[a]n who had come here...and then went back." Doesn't seem like this Englishman was BORN HERE if came here and then went "back" (to England). I distorted no plain meaning; I believe you simply misread it.
And Gray engaged in the generalities tha he did because he was trying to protect Arthur, who had appointed him
President Arthur died in 1886. Wong Kim Ark was decided in 1898. You're saying that Justice Gray was trying to protect a President who had been dead for twelve years? Even if that were true, how do you explain that five Justices joined Justice Gray's opinion? President Benjamin Harrison appointed Justices Brewer, Brown, and Shiras; and President Cleveland appointed Justices White and Wheeler.
It remains that Justice Gray's "generalities" are part of case law, and Wong Kim Ark has never been overruled. As I mentioned, Judges from lower courts have cited Justice Gray's analysis to conclude that "persons born within the borders of the United States are "natural [*29] born Citizens" for Article II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person "born within the British dominions [was] a natural-born British subject" at the time of the framing of the U.S. Constitution, so too were those "born in the allegiance of the United States [] natural-born citizens."" (FYI: Judge Brown wrote that opinion, and she was appointed by Governor Mitch Daniels. Yes, the same Governor Daniels who yesterday stripped Planned Parenthood of its government funding. So I hope you don't think Judge Brown wrote the opinion to "protect" anyone!)
Fair enough. I accept this. But to say that it was "something other than English" common law is extremely weak, and to say that "common law" is the "law of nations" is not supported by any of sourcery's sources.
But he does here admit that there is a difference of opinion somewhere.
Absolutely true. de Vattel's "les naturels" and English common law's "natural-born subject" are not defined the same way; there is a conflict.
The entire point of him saying that there was “doubt” shifts the burden of proof, and the court said it was simply not going to deal with it now, and the ball is back in your (or someone elses) court.
Thank for your thoughtful and unbiased commentary. You're right; the ball is back in "my" court. Who do I pass it to? Easy: Justice Gray and Wong Kim Ark. Justice Gray analyzes English common law and concludes that "the same rule was in effect" at the time of ratification. Five other Justices joined his opinion, none of whom was appointed by President Arthur. Wong Kim Ark was never overruled, and Judges from lower courts have cited his analysis to conclude that persons born within the borders of the United States are "natural [*29] born Citizens" for Article II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person "born within the British dominions [was] a natural-born British subject" at the time of the framing of the U.S. Constitution, so too were those "born in the allegiance of the United States [] natural-born citizens.
The author of the above quote, Judge Brown, was appointed by Governor Mitch Daniels of Indiana, the same governor who yesterday defunded Planned Parenthood in his state. Let there be no doubt: Judge Brown is not "protecting" anyone.
I’ve read alot of the court opinions, I have all of US reports on my machine. Sometimes they are very clear and somewhat dry and there is little melodrama.
But many times there are very subtle meanings and you would almost have to take a couple semesters of history to figure out whats up with the parties involved, or even other parties not involved but who may be affected by the decision.
This one looks crystal clear to me. He says DO NOT conclude as a question of law whether children born of alien parent(s) are citizens based on the findings in this case.
And as we have all pointed out time and time again, we MUST infer that there is some kind of difference between somebody generically being a “citizen” and the highest standard, somebody being a “natural born citizen”
I too thank all for their informative discussions in the thread. They have reinforced my opinion that Soetoro/Obama is not qualified to the Office.
Something to note, in my opinion:
The basis of the British Common Law and statutory laws was listed in Blackstone's Commentaries. The Founders and their brethren had been at war with the British and fought against British Law (Look up 'Impressment' - Blackstone I-13). That compendium also dealt with Subjects and Peerages for the classifications of its inhabitants. The Founders rejected those classifications, as evidenced by listing only two Citizen types in the Constitution - "citizen" and "natural born citizen". Others have already listed many references to the Founders acknowledgement of that along with their valid concerns and reasons.
Nowhere else is a requirement made for a 'natural born citizen' made other than that of the office of President, and they also specifically allowed for Washington et al - who did not meet Vattel's qualifications - to assume the Office, said allowance restricted to their generation.
Seems my tag line becomes more true day by day. :^(
Sure there is. We have naturalized citizens. They aren't "natural-born."
I clarify that I cite Minor to demonstrate that Chief Justice Waite did not look to de Vattel to define the undefined "natural-born citizen." As you recognized, he looked to "common law," though which "common law" I acknowledge is not stated. I say it's English common law; RegulatorCountry says it's "something other than English" common law. It very well could be, but if it's American common law, then we must know which case put us on a different path. He claims to know of "US precedents" before 1788 which prove his point, but as of yet, he has not dispensed with the goods.
Is that what you're saying?
A false opinion that was joined by five other Justices, none of whom was appointed by the President who appointed Justice Gray, and that has stood the test of time for over a century without being overruled?
Remember, the Republican Party is responsible for the ineligible and unlawful Arthur Administration, and responsible for the unlawful appointment of Justice Gray.
Oh come now! You're comparing the Republican Party of 2011 with the Republican party of 1880? Look at an election map of 1880. Do you notice that today's solid red states were 1880's solid blue states? Did it just happen to be that way in 1880? I think you know the answer is "no."
Besides, you still haven't explained why five other Justices, none of whom was appointed by President Arthur, joined Justice Gray's opinion in Wong Kim Ark. Who were they protecting?
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