Posted on 09/20/2011 8:28:54 AM PDT by Ordinary_American
It seems to me you are twisting yourself into a pretzel trying to deny the relevance of original intent altogether. Sigh....
“It seems to me you are twisting yourself into a pretzel trying to deny the relevance of original intent altogether. Sigh...”
Not at all. But it would be original intent of the states, not the drafters. The states vote. The drafters do not.
And the ‘intent’ cannot replace the ‘words’. No contract becomes void just because one party says, “I didn’t want it to mean that!” If the intent was for ‘some’, but they wrote ‘all’, then ALL is what the courts would have to deal with.
Otherwise the courts could rule that the Founders intended privacy to be a right, and that privacy would allow someone to travel on public roads to a public medical center and get a private abortion...
Also, since I am bored:
See, e.g., Bork, The Tempting of America, p. 144 (”If someone found a letter from George Washington to Martha telling her that what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest.... Law is a public act. Secret reservations or intentions count for nothing. All that counts is how the words used in the Constitution would have been understood at the time.”); Scalia, Speech at CUA, 14 October 1996 (”You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words.”)
http://en.wikipedia.org/wiki/Original_intent
“You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist, and secondly an original- ist. If you are a textualist, you don’t care about the intent, and I don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.
I do the same with statutes, by the way, which is why I don’t use legislative history. The words are the law. I think that’s what is meant by a government of laws, not of men. We are bound not by the intent of our legislators, but by the laws which they enacted, laws which are set forth in words, of course.” - Scalia
http://www.proconservative.net/PCVol5Is225ScaliaTheoryConstlInterpretation.shtml
Bork’s quote in context here:
http://books.google.com/books?id=jWbkvFhJStoC&pg=PA144#v=onepage&q&f=false
This is pure nonsense. The Minor v. Happersett case rejected an argument on the basis of citizenship at birth via the 14th amendment because it was NOT needed for persons born in the country to citizens. The court had no doubt that this definition of natural born citizen was clear and that it was not affected by the 14th amendment. The Wong Kim Ark decision affirmed this definition and said that the Supreme Court was committed to the idea that the children born in the country to citizen parents were EXCLUDED from the operation of the citizenship clause of the 14th amendment. Therefore, the definition of citizen at birth is NOT the same as natural born citizen. The Minor decision admitted that persons could be considered citizens at birth without regard to the citizenship of the parents, but such citizenship comes with doubts. It also recognized a naturalization act that created a type of citizenship at birth defined by law, while the definition for NBC is defined outside of the law and outside of the Constitution. The WKA decision made the same distinction. NBC is defined OUTSIDE the Constitution, while "citizenship by birth" was defined BY the Constitution via the 14th amendment, the same amendment it said excluded NBCs.
Sorry, but the syllabus of the decision and the decision itself acknowledged that her citizenship was PART of a key part of the decision.
1. The word "citizen" is often used to convey the idea of membership in a nation.
2. In that sense, women, of born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment to the Constitution as since.
Do you see this?? Women born of citizen parents have always been considered citizens as much before the 14th amendment as SINCE. This means the court is recognizing natural born citizenship without regard to the 14th amendment. Here's more, but from the opinion of the court this time:
The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage ...
The part underlined is from the 14th amendment. In case there's any doubt, the court goes on to say this amendment was NOT needed.
There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are expressly declared to be "citizens of the United States and of the State wherein they reside." But, in our opinion, it did not need this amendment to give them that position.
The question before the court was whether V. Minor was a 14th amendment citizen who therefore had a presumed right of suffrage as one the immunities and privileges of citizens. The court rejected her 14th amendment claim specifically because she fell under their definition of natural born citizen (as is shown from the syllabus).
The fourteenth amendment did not affect the citizenship of women any more than it did of men. In this particular, therefore, the rights of Mrs. Minor do not depend upon the amendment. She has always been a citizen from her birth, and entitled to all the privileges and immunities of citizenship. The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her.
You’re arguing with a tree stump.
Ping to an interesting article in post #262.
What you left out is that the founders translated "naturel" to "natural born" and "natural" in the Journals of the Continental Congress prior to the adoption of the Constitution. Considering the rest of the passage from Vattel is about natural, native or indigenous citizenship, it STILL REQUIRES citizen parents. Also considering the founders wanted to limit foreign influence, this definition of natural-born citizen is in concert with the "nomenclature" as the Supreme Court explained was used by the founders to define the term found in Art II, Sec I.
“They didn’t. Vattel wrote, “Les Naturels ou indigènes font ceux qui font nés dans le pays de Parens Citoyens.” That was translated as “The natives, or the indigines...” in all English editions until 1797 - 10 years AFTER the Constitution was written.”
So you’re saying that Les Naturals was incorrectly translated as “the natives” and not one of the Founders knew that the original text said the “Naturals..”
That’s a streech......
There were many in the former English colonies that spoke French and did not need to rely on English translations. Thomas Jefferson and Ben Franklin for just 2 of them. The Founders had both French and English editions (I believe there wre 3 copies of each) of Vittal when using it as a reference work for their crafting of the Constitution. I believe that they would have understood that Vittals idea was that Natural Born or natives meant “born ...de Parens Citoyens.” ....of citizen parents.... which is the whole point.....To be Natural born ie a “native” ones parents must be themselves citizens........
Your whole argument just fell apart......
But not the type of citizenship. Virginia Minor was not saying that only natural born citizens could have voting rights, and the state of Missouri did not deny her the right to vote because she had been naturalized. The Missouri court ruled that voting was not an automatic right of citizenship of any type, and that the state had the right to limit that franchise to male citizens only if they chose to do so. The court ruled on that alone, and what constituted natural born - or in the case of Virginia Minor 'native born' - was never a question before the court.
The doctrine of stare decisis says that judges should be bound by prior court decisions. Since the definition of natural born citizen was not a matter for the court to decide in the Minor case then any comments made on that subject were made in dicta and are not binding.
Did you not read what I wrote?? You're either not paying attention or simply ignoring what was explained. Minor claimed a right to vote on the basis of being a 14th amendment citizen. The court rejected this claim because she was already a citizen by virtue of being a natural born citizen. They spent several paragraphs explaining why her citizenship was NOT due to the 14th amendment. That definition was cited and affirmed 23 years later in the Wong Kim Ark decision (I may be off on the number of years between decisions). And I showed specifically where the issue of citizenship was listed as 2 out of the 6 points listed in the syllabus that summarized the decision. The criteria that made her a citizen (being born in the country to citizen parents) was as valid before the adoption the 14th amendment as it was SINCE its adoption. I know you don't like it, but it's there in writing. Read it. Learn it. Understand it.
“The Wong Kim Ark decision affirmed this definition and said that the Supreme Court was committed to the idea that the children born in the country to citizen parents were EXCLUDED from the operation of the citizenship clause of the 14th amendment. “
Prove it. Show the passage that says that!
“What you left out is that the founders translated “naturel” to “natural born” and “natural” in the Journals of the Continental Congress prior to the adoption of the Constitution.”
Not true. The passage you refer to has “sujets naturel” - which is translated natural born subject for the British, and natural born citizen for America. Naturel by itself is NOT translated NBC, but native or natural.
Further, the bad translation of Vattel has “indigenes” translated NBC, when it OBVIOUSLY is the same as “indigenous”.
And, beyond any doubt, they did NOT adopt Vattel’s idea that citizenship is controlled by the parents, and not by birth place. This is not Switzerland.
That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later ...
The Slaughterhouse Cases listed a couple of basic exceptions to the subject clause of the 14th amendment. Gray makes a point here that this list can't be assumed to be comprehensive and that you have to look at other cases when certain aspects of an issue aren't examined. In Minor, they defined NBC. In Elk v. Wilkins, they excluded Indians from the subject clause of the 14th amendment. Neither of these were considered in Slaughterhouse. But the same judges in Slaughterhouse that were divided were NOT divided in Minor. They UNANIMOUSLY rejected Virginia Minor's claim of being a 14th amendment citizen because she met the court's definition of natural born. This is why Gray says the court was committed to excluding NBCs ("all children born in the United States of citizens") from the citizen clause of the 14th amendment. In the next paragraph he gives the Minor definition of NBC. In the paragraph after that, he summarized the Minor definition, citing both JUS SOLI and JUS SANGUINIS criteria:
Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship.
In the next paragraph (now we have at least four paragraphs that now support each other), Gray cites Elk:
The only adjudication that has been made by this court upon the meaning of the clause, "and subject to the jurisdiction thereof," in the leading provision of the Fourteenth Amendment is Elk v. Wilkins, 112 U.S. 94, in which it was decided that an Indian born a member of one of the Indian tribes within the United States, which still existed and was recognized as an Indian tribe by the United States, who had voluntarily separated himself from his tribe and taken up his residence among the white citizens of a State but who did not appear to have been naturalized, or taxed, or in any way recognized or treated as a citizen either by the United States or by the State, was not a citizen of the United States, as a "person born in the United States and subject to the jurisdiction thereof" within the meaning of the clause in question.
That decision was placed upon the grounds that the meaning of those words was not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance;
From this point forward, Gray does NOT say anything more about natural-born citizens. He had a definition that could NOT be applied to Wong Kim Ark.
It is true and you proved it by giving the exact citation. 'Sujets" is only translated as "subject." This means that "naturel" is the part that was translated as "natural born." The founders would have read Vattel's passage on citizenship to be a passage about "natural" or "natural born citizenship." You're destroying YOUR OWN argument. Thanks.
It takes 2/3 of The House & Senate Majority + 3/4 of all of the States Legislators
To Amend the Constitution.
The Democrats have attempted 7 times recently to pass Bills to Amend the Portion of the Constitution calls for Natural-Born Citizen to be elected to be POTUS.
It still stands that to be POTUS you must be born to “Parents” who are “Citizens” of the United states of America.
http://www.usconstitution.net/constam.html
It takes 2/3 of The House & Senate Majority + 3/4 of all of the States Legislators
To Amend the Constitution.
The Democrats have attempted 7 times recently to pass Bills to Amend the Portion of the Constitution calls for Natural-Born Citizen to be elected to be POTUS.
It still stands that to be POTUS you must be born to “Parents” who are “Citizens” of the United states of America.
http://www.usconstitution.net/constam.html
(1) The States didn't write the Fourteenth Amendment — Congress did. (And it seems that Congress' view of citizenship differs little [if at all] from the view of the Framers.) Then the States ratified it as written.
(2) Surely you have heard of the Supremacy Clause — Article VI.
Who knows? You may get to test your legal theory some day.
Thank you so much for writing!
So Nunez became a citizen of the Country of the Blind, and these people ceased to be a generalised people and became individualities to him, and familiar to him, while the world beyond the mountains became more and more remote and unreal ...
[The sighted man escapes, just hours before the citizens of the lost valley of the blind are to put his eyes out, so that he may be fully one of them. With good fortune he finds a previously hidden way back up the steep mountains to the world. He stops upon seeing the outside world for the first time in years ... ]It seemed to him that before this splendour he and this blind world in the valley, and his love and all, were no more than a pit of sin.
Yes, I understand that. - I went to school when they still taught US History, and Civics.
There is mostly a small clot of O-bots here pushing the revisionism, and a couple of soft headed regular freepers.
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