It is still incredible, that the Founders would draw upon law for royal subjects, Cheburashka.
Please consider the following:
“So far we have assumed that the conventional meaning of “natural born citizen” for those learned in the law in the eighteenth century was equivalent to the meaning of “natural born subject” in nineteenth century English law. But is this assumption correct? Does the substitution of the term “citizen” for “subject” alter the meaning of the phrase? And if those learned in the law did recognize a difference, what implications does that have for the meaning of the natural born citizen clause?
The language of the Constitution recognizes a distinction between “citizens” and “subjects.” For example, Article III, section 2 differentiates “citizens” of the several states from “citizens” or “subjects” of foreign states. In the framing era, these terms reflected two distinct theories of the relationship between individual members of a political community and the state. In feudal or monarchical constitutional theory, individuals were the subjects of a monarch or sovereign, but the republican constitutional theory of the revolutionary and post-revolutionary period conceived of the individual as a citizen and assigned sovereignty to the people.
The distinction between citizens and subjects is reflected in Chief Justice John Jay’s opinion in Chisholm v. Georgia, the first great constitutional case decided after the ratification of the Constitution of 1789: “ [A]t the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects . . . .” Justice James Wilson confirmed Jay’s articulation of the opposition between subjects and citizens. Wilson noted that with the exception of Article III, the Constitution refers to “citizens” and “persons,” not subjects: “The term, subject, occurs, indeed, once in the instrument; but to mark the contrast strongly, the epithet ‘foreign’ is prefixed.” Both Jay and Wilson’s opinions suggest that usage in the founding era reflects a significant conceptual distinction between the words “subject” and “citizen”. The term “citizen” reflects the notion that individual citizens are sovereign in a republic, whereas the term “subject” reflects feudal and monarchical conceptions of the lord or monarch as sovereign and the individual as the subject.
This conceptual distinction may be relevant to the original understanding of the American constitutional phrase “natural born citizen,” which was used instead of the English legal phrase “natural born subject.” The notion of a natural born subject may reflect a feudal understanding of political obligation: Those born in the kingdom owed a natural duty of allegiance to their king and were his natural subjects. Given a republican theory of popular sovereignty, citizens are sovereign, and the notion of a “natural born subject” would be anathema.”
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Excerpted from: Originalism and the Natural Born Citizen Clause
Lawrence B. Solum *†
* Associate Dean for Faculty and Research and John E. Cribbet Professor of Law and Professor of Philosophy at the University of Illinois. Professor Solum is the author of numerous articles on constitutional theory and the philosophy of law.
† Suggested citation: Lawrence B. Solum, Commentary, Originalism and the Natural Born Citizen Clause, 107 Mich. L. Rev. First Impressions 22 (2008), http://www.michiganlawreview.org/firstimpressions/vol107/solum.htm
English law was their law, the law they grew up with. For over a year after the American Revolution started they still regarded themselves as Englishmen, Englishmen standing up for their rights as Englishmen against an unjust government. English law was not some foreign law imposed on them. My opinion is that they used Blackstone, because he was a formerly fellow countryman writing about English law, as I've said, the actual law that the British subjects who transformed themselves into American citizens were used to using. The law they used to buy their house, to sell the food they produced in their fields. That whole legal tradition was not thrown away on July 4, 1776, the allegiance to the King and the unity with the Kingdom of Great Britain was.
Natural born is a legal term of art. Something that has a specific meaning in the law. if they had wished to specify that the American President had to be born on American soil to parents who were American citizens, they could have done so in so many words. They already very carefully crafted that passage to allow one specific man to run for the Presidency(Alexander Hamilton) should he wish to do so, so the words were not casually chosen.
The whole point of being able to write the law is to write the law that you think proper. If you fail to write the law clearly, the law as written must be interpreted as broadly as possible. If you fail to specify that American born in America to parents who are not Americans are barred from the Presidency, you should not be surprised when the Constitution is interpreted against your wishes. And that assumes they did in fact want to discriminate against Americans not born to American parents, something I do not believe.
I already know what your opinion is, I guess we're just going to have to disagree. With two incompatible references if it comes to that, the Supreme Court will have to make a ruling. I suspect they will choose the Englishman over the foreigner, who was not part of the English legal tradition. But that's just my prediction, I could be wrong.
I must say though, that in all the decades I have been an American I have never heard that passage interpreted any other way but: if you are born in America you are eligible for the Presidency, if you are a naturalized American you are not. Until this Presidential cycle. Now suddenly that is not good enough. I can understand why some people who had the same decades-long experience I had might think this all smacks of being poor losers. Think carefully about how happy you would be to see this suddenly "whipped out" to disqualify Sarah Palin if it was her life story that she was born in America to non-American parents.
I may be a little harsh in suggesting that he may have been providing cover for Obama. Far fetched? I've read at least half a dozen law review articles, three written by confirmed Obama associates, demonstrating the same enormous blind spot. What, you don't think law schools work to achieve political ends? (I'm being facetious!) How, with the dozens of Vattel citations, and the explicit references in the major citizenship cases of the USSC can a law professor claim to be examining originalism and omit Vattel, the Venus, the 14th Amendment, Minor v. Happersett, Wong Kim, Elg?
This is not scholarship, it is partisan pandering, well clothed in correct English complete with references to other duplicitous political pamphlets. Slocum is just creating talking points for the left. He may even be offering his definition, entirely distinct from two hundred twenty five years of accepted, and often challenged, common law, to become a foundation document for presidential eligibility in the “Obama Constitution” - back to the future, because we are returning to monarchy.
You wrote:
“So far we have assumed that the conventional meaning of “natural born citizen” for those learned in the law in the eighteenth century was equivalent to the meaning of “natural born subject” in nineteenth century English law. But is this assumption correct?
No, the assumption is not correct. The British common-law was a relatively recent, 18th Century, abnormal departure from and in contradiction to the customary Law of Nations stretching back two millenia to the Roman Republic and earlier. The recent propensity to assume the 18th-19th Century English common-law practice of making the place of birth, jus soli, the method of determining status as a natural born subject equivalent to a natural born citizen is based upon widespread public ignorance and an erroneous confusion of the purpose and means of determining citizenship.
The place of birth, jus soli, is just one of many METHODS for determining ALLEGIANCE to a sovereign. There are many other METHODS which were used to determine ALLEGIANCE to a sovereiegn. Descent by blood, jus sanguinni, is another method used to determine allegiance to a sovereign. Descent from foreign parents, jus albinatus, was a method of denying allegiance to the sovereign in whose domains a person was born. In each circumstance, it is the allegiance which determines citizenship, and it is one or more of the methods which determines that allegiance.
A person natural born in the domain of a sovereign with parents of foreign citizenship and owing allegiance to another sovereign as a result of jus albinatus is the natural born citizen of the other sovereign, and is not the natural born citizen of the sovereign in whose domain the person was born. This was the actual law and practice in old France and many other nations at a time when England used jus soli as a method of claiming the allegiance of every person born in the dominions of the sovereign of England.
Upon the Revolution as of 4 July 1776, the United States of America abolished the British common-law and each state began to enact its own statutory citizenship laws in replacement of the former British common-law. The new statutory laws were modeled on a mixture of international law and custom as described by the works of Vattel and others of like background with respect to the Law of Nations. In every such law, the authors were concerned with allegiance to the sovereign State using a variety of methods including combinations of jus soli and jus sanguinni to determine the natural born allegiance of a person.
So when the phrase “natural born subject” or “natural born citizen” was used at the time of the origin of the Constitution, the true meaning of the phrase is “born in nature with allegiance to a sovereign” of this or another domain. As in old France, the sovereign owed the allegiance was not necessarily going to be the sovereign of the domain which was the place of birth, unless the place of birth was a domain of Britain.
The phrase, “natural born citizen,” as it was used in the Constitution was all about “natural born” allegiance and not about “natural born” place of birth. This is why the Founding Fathers understood exactly what they meant to say when they wrote the phrase into the Constitution for the purpose of excluding any person born with allegiance to a foreign sovereign from serving as Commander-in-Chief or being eligible to the Office of the President. As used by the Founding Fathers in the Constitution, the phrase means “a person born in nature with allegiance only to the United States of America.” Each of the thirteen States of the Union had enacted its own laws to determine who could and could not be a Citizen of that State and thereby also a Citizen of the United States. Since dual nationality did not exist at that time, no person born with allegiance to another sovereign could possibly also be “a person born in nature with allegiance only to the United States of America.”