Vattel

Evidently you either did not read and/or understand the also non-binding minority opinion. You also appear to not understand why the comment in the opinion written by Justice Gray is unquestionably not a binding precedent.

Oh, I saw that the two dissenters cited de Vattel (once) in their dissent. They didn't convince the other six Justices in 1898, and 103 years later, they haven't convinced any Judges or Justices, seeing as how every birther lawsuit has failed.

If not "understand[ing] why the comment...is UNQUESTIONABLY not a binding precedent" puts me in the company of Judge Brown rather than you, I'm happy to be in her company.

And you still can't answer why five Justices, none of whom was appointed by allegedly illegitimate President Arthur, joined Justice Gray's opinion in Wong Kim Ark. Two Justices dissented, but none of the five who joined the majority opinion wrote concurring or separate opinions.

(You also can't explain why on Earth Justice Gray would "protect" a President who had been dead for twelve years by the time Wong Kim Ark was decided. Don't forget that Congress has to CONFIRM appointees...how far do you want to take your conspiracy theory?)

Dicta are not binding as precedents in decisions.

What's obvious to you clearly wasn't obvious to the Indiana Court of Appeals. But that's right; all three Judges on that case are judicial activists, even the Judge who wrote the opinion, despite being appointed by a Governor who just yesterday defunded Planned Parenthood in his state. Judge Brown was protecting somebody, but who exactly, I don't know.

We can continue bantering back and forth, but the following remain undisputed:

NBC isn't defined in the Constitution. Thus, as Chief Justice Waite recognized in Minor, "resort must be had elsewhere..."
Chief Justice Waite sought "common law" to define "natural-born citizen." Which "common law" exactly is unclear, but he did not cite de Vattel anywhere in the Court's unanimous opinion.
Justice Gray performed a careful and thorough analysis of English common law to conclude that "the same rule" was in force at the time of ratification. Five other Justices joined his opinion, none of whom was appointed by allegedly ineligible President Arthur. de Vattel was not cited at all in Justice Gray's opinion.
Writing for the Indiana Court of Appeals, Judge Brown referred to Wong Kim Ark 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."" Judge Brown was appointed by Governor Mitch Daniels, who only yesterday defunded Planned Parenthood in his state.

What is crystal clear to you wasn't or isn't crystal clear at all to the Judges and Justices involved in the above cases, with the possible exception of the two dissenting Justices in Wong Kim Ark, who did cite de Vattel once in their dissent.

Moreover, you still can't explain why five Justices, none of whom was appointed by President Arthur, joined Justice Gray in Wong Kim Ark, and your allegation that he did what he did to "protect" a President who had been dead for over a decade at the time of writing leads to a conspiracy theory, given that Justices must be confirmed by Congress.

We can explain it to someone who makes rational responses. No one can explain it to a person who cannot or refuses to give a rational response to the routine observation that the court cases you rely upon made comments which do not bind a later court to the acceptance of the dicta used in the prior courts' opinions.

The Indiana court made a decision regarding a lack of standing and/or jurisdiction, which made no binding decisions about the natural born citizen question whatsoever. They did comment on the question, but this dicta like all dicta is commentary, which is not binding upon any later courts or court decisions. In a proper and legal trial, the parties have an opportunity to present evidence to refute court claims. No such opportunity to try the the argument with the discovery and presentation of the evidence for the eligibility of a person to the Office of the President has ever been tried before a U.S. court of law. That includes Indiana.

Moreover, you still can't explain why five Justices, none of whom was appointed by President Arthur, joined Justice Gray in Wong Kim Ark, and your allegation that he did what he did to "protect" a President who had been dead for over a decade at the time of writing leads to a conspiracy theory, given that Justices must be confirmed by Congress.

Unless a Justice also writes their own opinion, their joining in the decision does not necessarily indicate they agree with every sentence and phrase of the commentary. Justices often have their own and sometimes independent and contradictory reasons for joining the majority or minority opinion. They often do not comment on those reasons.

It is unfortunate that you resort to belittling the controversy as a "conspiracy theory" in order to smear the reputations of the people opposing your comments. It is an incontrovertible fact that President Chester Arthur appointed Horace Grey to the Supreme Court of the United States. It also an apparent fact that Chester Arthur's father was a British Subject with British citizenship when Chester Arthur was born in the United States. Under the interpretation of the Constitution that Chester Arthur was a natural born British citizen due to his father's British citizenship, Chester Arthur was not eligible to the Office of the President. In the event that Chester Arthur was discovered and found to be ineligible to the Office of the President, he could have been removed from office by the U.S. Congress, and all of his appointments and other acts would have been null and void as if they had never happened. Consequently, despite the fact that Chester Arthur was already out of office and deceased, Justice Grey's acts would also be null and void as well, and he would have to be removed from his office in the Supreme Court of the United States.

Given such circumstances, Justice Grey's unnecessary additional commentary about the natural born citizen clause in a case not addressing the question was in effect self-serving and an obvious conflict of interest, whether or not anyone can prove he was aware of the conflict of interest. So, no conspiracy theory is required to observe the obvious facts of the circumstances.

We can explain it to someone who makes rational responses.

Sheesh, y'all LOVE this tactic. You make a claim, and then you refuse to answer questions about the claim.

No one can explain it to a person who cannot or refuses to give a rational response to the routine observation that the court cases you rely upon made comments which do not bind a later court to the acceptance of the dicta used in the prior courts' opinions.

If you want to continue this argument, then "natural-born citizen" is undefinable. All Supreme Court cases that discuss "natural-born subject" or "natural-born citizen" become nothing but dicta on the matter, since no case dealt purely with who is a "natural-born citizen."

You may retort and say that of course it is definable; consult de Vattel on the matter! But why is he the obvious choice? And if it is so obvious, then why didn't Chief Justice Waite and Justice Gray cite him in their dicta in Minor and Wong Kim Ark? If you say that Justice Gray didn't cite de Vattel because he was protecting a President who had been dead for twelve years at the time of writing, then who was Chief Justice Waite protecting?

Curiously, a lower court case from a New York Court--Lynch v. Clarke may illuminate our stagnant discussion. Vice Chancellor Sandford's analysis of "natural-born citizen" is STILL dicta, as the issue was "merely" whether Julia Lynch was a "citizen," not who is a "natural-born citizen." But, Vice Chancellor Sandford does in fact cite de Vattel numerous times in the Court's opinion, in contrast to Chief Justice Waite and Justice Gray, who I have already said multiple times never cited de Vattel anywhere in their respective Opinions for the Court. In the interest of full disclosure, I add that Vice Chancellor Sandford's dicta includes, "Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not."

The case appears to be quite long, so I will have to take time to read it in full. You are free to join me here.

Unless a Justice also writes their own opinion, their joining in the decision does not necessarily indicate they agree with every sentence and phrase of the commentary.

You said it yourself: in the Court's opinion, Justice Gray added "unnecessary additional commentary." An examination of the Opinion quickly reveals that Sections II and III, which contain the bulk of Justice Gray's analysis and in your eyes are nothing but dicta, are long and detailed. Yes, joining a decision does not indicate agreement with every "sentence or phrase," but we're not talking about a word or even a sentence. We're talking about pages upon pages upon pages of dicta. Your reply is greatly weakened by just how long Sections II and III are. If the other five Justices felt that Sections II and III were unnecessary, they would've written separate or concurring opinions to express their discontent with Justice Gray's "unnecessary [and extremely long and detailed] additional commentary." They did not.

Well, it wasn't obvious at all to President Garfield, who chose Chester Arthur as his running mate. Nor was it obvious to Winfield Hancock, President Garfield's Democratic opponent in the Election of 1880. (By then, mudslinging had already become common in elections.) And last but certainly not least, it wasn't obvious to the 4,446,158 Americans who voted for the Garfield-Arthur ticket, or the 214 electors who cast their lot with the Garfield-Arthur ticket.

So obvious to you, yes, but no, not obvious to others.

You are being condescending in the way you refer cases to us as if we had never seen them before. Many of us have seen them before. Many of us understand the cases. At least one or more of us have been acquainted with some of these cases long before Obama reached adult age.

You are also not helping yourself or your argument by using strawman arguments, or by harping on Vattel as if he were supposed to be somehow indispensable to understanding the origin of the natural born citizen clause. He isn't. He simply added his own comments to those of the men whose works he interpreted and the state of customs he was observing. People who could not read or write knew what it meant to be an alien and born the child of a natural father.

Thank you so much for the post!

I've been researching the connection between the Founders and Vattel for some time now, and I came across this one just the other day:

I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly, that copy which I kept, (after depositing one in our own public library here, and sending the other to the college of Massachusetts Bay, as you directed has been continually in the hands of the members of our congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author. Your manuscript Idee sur le gouvernment et la royauté, is also well relished, and may, in time, have its effect. I thank you, likewise, for the other smaller pieces, which accompanied Vattel.
Benjamin Franklin To Charles-Guillaume-Frédéric Dumas, Philadelphia December 9, 1775.

You are being condescending in the way you refer cases to us as if we had never seen them before. Many of us have seen them before. Many of us understand the cases.

When I mentioned Lynch v. Clarke, it was not my intention to be condescending to anyone. I was only pointing out that unlike Minor and Wong Kim Ark, Lynch actually cites de Vattel numerous times while still reaching the same conclusion that Justice Gray did half a century later. If you have read the case before and understand it, then please explain why you did not find its dicta convincing. Did Vice Chancellor Sandford feel compelled to protect anyone?

You should tell some of your FRiends here that de Vattel isn't "indispensable to understanding the origin of the natural born citizen clause," not me. My apologies if I strawmanned you personally, though.

Yesterday, you wrote to me, "The Founding Fathers did not define the terminology, because it was unnecessary to do so. Anyone with half of a brain knew a person was born with the father's allegiance, hence natural born allegiance and natural born citizenship that goes along with the allegiance." Your position is consistent, as you just stated that "People who could not read or write knew what it meant to be an alien and born the child of a natural father."

But your position fails to explain why so many Judges and Justices reach the same conclusions in their dicta. Your position fails to explain why Chief Justice Waite consulted "common law" to define the unnecessary-to-define phrase "natural-born citizen" in his dicta to Minor. How come they don't see what you see, if "anyone with half of a brain" ought to be able to see what you see?

His allusion, it seems, was to the situation in Shanks v. Dupont. There an Englishman came here, married an American colonial woman, both of whose parents were citizens of the then colony of South Carolina when she was born. The British officer and his American colonial life then went to England and had a family there. In holding that she could inherit from her parents, Joseph Story, speaking for the majority in what is controlling precedent, held that concepts of citizenship were derived by the Framers from the law of nations not from the "mere municipal" common law of England.

This precedent has never been overturned.

The great fallacy in your argument is that while it is evident that a positive opinion of Vattel and his formulations such as the definition of a "natural born citizen" was common in the relevant discourse of the time. By contrast there was no such positive mention of English common law in that discourse and in fact there was criticism of it. It remains the case that opinions such as that of Gray in Wong Kim Ark rely upon the vague generality that the Framers were "familiar" with English law and do not decide upon the Article II phrase which was not before them, nor do they give a single specific example of what such familiarity led to in the way of defining the phrase "natural born citizen" in Article II. John Marshall, certainly the most renowned and authoritive jurist of the time, on the other hand, goes directly to Vattel's relevant section and says that it is controlling.

Now you are misrepresenting what has been said was obvious and the circumstances. It logically follows that if anyone had as I said “discovered” Chester Arthur was ineligible under the interpretation that British citizenship at birth made Arthur ineligible, then there was some measure of risk someone might find Justice Grey's acts were also null and void. Whether or not Justice Grey was aware of these facts, his writing an opinion which had the effect of legitimizing Arthur's Presidency and thereby Grey's appointment to the Supreme Court, which in effect can only be a conflict of interest by safeguarding Grey's position on the Supreme Court. No one had to have actual knowledge of the conflict of interest for it to exist in effect.

If such simple cause and effect logic is too difficult for you to understand and be logically obvious, a person has to wonder how you can hope to understand how language, French or English, provides the inherent definition of a natural born citizen.

The Indiana opinion relies upon the same generalities and scarceely overturns the opinion of Joseph Story. Not is it at all persuasive as up against that of John Marshall or the authority of either St. George Tucker or Daniel Ramsay.

Granted, Arthur was dead but the question of his having been ineligible was still being raised and in fact was increasing at the time.

How about some actual proof that any Framer relied upon the point you seek to make as allegedly from the common law of England as it dealt with "subjects" rather than citoyen. Do you think that we during the period of "secring the Revolution" leading to the War of 1812, agreed with the British citing of jus soli" in order to impress our seamen and impress them in the Royal Navy? The simple fact is that we as a nation did not and wound up securing the Revolution by winning the War of 1812, even after Washington was sacked. This history soundly disproves your thesis.

LOL! Not only have you cherry picked from the beginning of a very lenghty decison, you ignore the fact that we are NOT in England, and we are not 'subjects'.

You continually try to twist Wong Kim Ark on every thread.

From the link above:

"that he was a native-born citizen of the United States"
[note it says NATIVE BORN not natural born]

"The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle."
[NOTE: it says 'just as much a citizen'...it does NOT the citizen in question IS natural born]

-----

BTW-

1} You can't petition a court as one thing and have it declare you something else,

and

2} Deriding a man like Vattel (whose brilliance had even the Founders in awe) by using such haphazard evidence makes you look rather foolish.

In holding that she could inherit from her parents, Joseph Story, speaking for the majority in what is controlling precedent, held that concepts of citizenship were derived by the Framers from the law of nations not from the "mere municipal" common law of England.

Is this the same Justice Story that wrote the following?

With these principles in view, let us now come to the consideration of the question of alienage in the present case. That the father and mother of the demandant were British born subjects is admitted. If he was born before 4 July, 1776, it is as clear that he was born a British subject. If he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth. If he was born after 15 September, 1776, and his parents did not elect to become members of the State of New York, but adhered to their native allegiance at the time of his birth, then he was born a British subject.

But we've been over this already. de Vattel wrote in French; he never used the phrase "natural-born citizen." He said "les naturels ou indigènes." Moreover, as stated in the very first post of this thread, it's not at all incontrovertible that the ONLY way to translate "les naturels ou indigènes" is "natural-born citizen."

The fallacy in your argument is to insist that de Vattel defined a phrase in English that he never used.

John Marshall, certainly the most renowned and authoritive jurist of the time, on the other hand, goes directly to Vattel's relevant section and says that it is controlling.

And which case is this?

The Indiana opinion relies upon the same generalities and scarceely overturns the opinion of Joseph Story.

Do you know exactly what Justice Story said? I believe you are referring to the following:

Those political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations.

Why is that "controlling precedent" and not merely dicta? What was Shanks about, exactly? (I add that de Vattel is not cited anywhere in Shanks.)

But what we fought over was the right of those who, though born as British "subjects" have the right to expatriate and beomce "citizens" of the constitutional republic of the United States of America. What is at issue is the clause concering a a "natural born citizen" not a subject. By ignoring the difference between "citizen" and "subject" you misrepresent Story's position concerning "citizenship" as opposed to being the "subject" of a monarch.

It is quite clear that the translations of the time use the phrase and that the authorities of the time understood it the way that they did. If you are not familiar with John Marshall's opinion in The Venus,(1814), (joined by Livingston), which appears to be the case, I suggest that you read it. I also suggest, since you appear not to have done so, that you read the comments of St. George Tucker at the end of his 1804 American edition of Blackstone, which was pre-eminent at the time, where he notes the differences between the English common law as set out in Blackstone and the Constitution, including the phrase in Article II at issue. Somehow I don't think you have the authority of either of these gentlemen, much less Story.

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