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To: AmericanVictory
What he said clearly excludes a child born here one of whose parents was an Englishman rather than an American.

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!)

153 posted on 05/01/2011 2:48:34 PM PDT by Abd al-Rahiim
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To: Abd al-Rahiim
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.

172 posted on 05/01/2011 7:07:34 PM PDT by AmericanVictory (Should we be more like them or they more like we used to be?)
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To: Abd al-Rahiim
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.

174 posted on 05/01/2011 7:18:24 PM PDT by AmericanVictory (Should we be more like them or they more like we used to be?)
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