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To: WhiskeyX
It appears you are hungup on the problem of not understanding the origins of American common law.

Quite possible. But I do know the following are not in dispute:

  1. "Natural-born citizen" isn't defined in the Constitution. As observed by Chief Justice Waite, "Resort must be had elsewhere to ascertain that."
  2. Chief Justice Waite referenced "common law." He did not cite de Vattel anywhere in the Court's unanimous opinion for Minor.
  3. Justice Scalia has stated in oral arguments that "the meaning of natural born within the Constitution...requires jus soli."

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.

126 posted on 05/01/2011 11:54:50 AM PDT by Abd al-Rahiim
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To: Abd al-Rahiim

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.


128 posted on 05/01/2011 12:03:39 PM PDT by WhiskeyX
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To: Abd al-Rahiim
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

(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.

135 posted on 05/01/2011 12:39:06 PM PDT by bvw
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