Posted on 10/29/2011 1:02:58 PM PDT by Jacquerie
We should be wary of allowing any court to define Constitutional terms. Even more important, for the very sake of representative government, we must resolutely oppose judicial interference with the Presidential election process.
From Madison’s record of the Federal Convention, it is clear the Framers considered anyone born in the US, less slaves and indians, to be a natural born citizen. They did not bother to specify parentage because it just didn’t matter. What was important was to minimize the possibility of a paid foreign born agent becoming President. Yes, I know Wiki says it was to keep foreign aristocrats out. Wiki is wrong.
So, who or what body gets to define NBC? Since Congress has all legislative powers therein granted under our Constitution, it would seem after 220+ years, it would have come up with a definition. But it hasn’t, and actually it doesn’t matter that Congress has been silent. Equally irrelevant are the various musings of the Courts over these past 140 years. NBC applies solely to Presidential elections and the Framers wisely set up a system that kept Scotus entirely out of it.
The reason is called separation of powers. We take for granted (Or have most of us forgotten?) that Congress cannot judge felony guilt or innocence, nor can federal judges make law. The concept was not exactly clear early in the convention. For instance, it was thought a Council of Revision, composed of Scotus and the President should be responsible for deciding which bills from Congress become law. After some heated debate, a majority figured out it would be best to keep Scotus out of political decisions and give limited veto powers to the President.
Nothing is more political than elections, and as per Article II Section I and the Twelfth Amendment, the duty to give us a President lies with State legislatures and Congress.
Federal courts can no more legitimately interfere with the vote of State electors than it can interfere with the President’s power to nominate ambassadors. Both acts are non-justiciable. To do so would be a gross, impeachable violation of the Constitution. Unfortunately, all liberals and too many Freepers have fallen into a rat trap concocted these past 80 years that any dispute must be settled by a branch of government unaccountable to the people. It simply isn’t true and Scotus cannot legitimately “fill in” when some people become disgusted with the other branches.
But, you say, the Constitution is silent as to ambassador qualifications. Quite right, so who or what body is responsible for keeping a Kenyan, or any clearly foreign born and positively unqualified individual out of the White House?
As I have explained, it isn’t Scotus. The responsibility can only be with the parties charged with giving us a President, State Legislatures which are responsible for the appointment of electors, the electors themselves and perhaps the Senate which counts the votes. That is why it was not unimportant for the Senate in 2008 to find that McCain met the Constitutional requirements. Our Senate must ultimately count the electoral votes and that Senate decided McCain was qualified. Very simple, and no court can interfere with State electoral votes, nor the Senate in its duty to count the votes as directed by the Constitution.
The place to stop Constitutionally unqualified candidates is your State legislature. These are the people our Constitution charged with exercising electoral judgment. Do you know the name of your State Rep and Senator? You should, for he/she is the one who must be satisfied that your State sends votes for qualified candidates to the US Senate. Now, what if it becomes clear after an election the President was born in Kenya as I believe Hussein was? What if the Kenyan Ambassador publicized his Brit/Kenyan Birth Cert tomorrow? The only solution prior to the next election is impeachment and conviction. Don’t even think about Scotus or any federal court; they won’t touch it and shouldn’t. The Constitution provides the means to be rid of him and it is not the courts. Oh, and if for instance Hussein’s Praetorian Guard, aka the Senate makes it clear it will not vote to convict the man who boldly violated the Constitution? Tough. Let the political chips fall where they may.
Finally and actually most importantly, our Leftists Rulers over the generations have so polluted case law, that most politicians and almost all average citizens think the Constitution means whatever the courts say it means. Liberals love precedent and despise our beloved Constitution. If you think federal courts have the power to define NBC, adjudicate the Constitutional qualifications of a candidate, and subsequently deny a candidate or boot a nominee off a Presidential ballot, you will set in motion a process that will ultimately result in judicial selection of Presidents.
Don’t laugh, consider what Scotus did to the innocuous and harmless Commerce Clause beginning 70 years ago. A once well understood enumerated power may become the tool to enslave under Obamacare, the once freest people on earth.
I predict Scotus will steer clear. Be fall-on-your knees thankful, if given the opportunity to substitute its opinion for that of the States, our Scotus pulls back and lets a representative republic do its duty. If you think Hussein & Rubio are Constitutionally unqualified, do YOUR duty and impress your thoughts to your State rep and Senator.
That's a letter from Madison, right? It's interesting that he says he considers the Jefferson statement to be evidence of "a preference for natives of the country over foreigners, for all places of public trust." Isn't this yet another example of how they considered "native" and "natural born" to mean the same thing?
The next evidence he cites is Washington's preference for "American born" or "native" soldiers. It seems pretty clear that, to Madison anyway, "native," "American born," and "natural born" are interchangeable.
Perhaps you shouldn't mouth off unless you are more precise in your meaning? Something tells me you can't help yourself. I will take your clarification as a vituperative admission of error.
Of what significance is it that it only came up once in the Convention? One does not need to belabor the obvious. Had it been an issue of contention it would have no doubt provoked a debate, which it did not. Apparently the desire to bar foreign influence to our executive was unanimous, and also better served by the Vattel's definition than the King's law.
“And that’s not counting those who contended for the Presidency as major candidates, but lost, who would have also fit the ‘not having two citizen parents’ bill.”
Like the very first Republican Presidential candidate, who was the son of a Frenchman. And that was pre-14th Amendment, too.
Journals of the Continental Congress —MONDAY, JANUARY 19, 1784.
Journals of the Continental Congress, 1774-1789
MONDAY, JANUARY 19, 1784.
Three states only attending; namely, Massachusetts, Pensylvania and North Carolina; and from the State of Connecticut, Mr. [Roger] Sherman; from Delaware, Mr. [James] Triton; from Maryland, Mr. [Edward] Lloyd; from Virginia, Mr. [Thomas] Jefferson; the President adjourned Congress till ten o’clock to-morrow.
Steady, mon brave Jacques, that Senate thing was a non-binding resolution. That is, it has about the same force in constitutional law as "be it Resolved that henceforth, November 4th Shall Be Declared National Pickle Day."
I also appreciate your appeal to Papal History. Operative question: "When is the Anti-Pope the Pope?" Although the Potomac does resemble the Tiber, since the POTUS doesn't get carried about in a chair like the Pontiff,yet, there's not much chance of his being thrown in.
The next evidence he cites is Washington's preference for "American born" or "native" soldiers. It seems pretty clear that, to Madison anyway, "native," "American born," and "natural born" are interchangeable.
Yes, for most of this nation's existence, the terms "native" and "natural born" were used interchangeably. I should not be surprised to discover they share etymology. Do not, however, mistake the earlier usage for the modern usage.
Let me give you an example of how these words were used in a sentence by a legal authority.
At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.
Natives = "children born in a country of parents who were its citizens."
Not what you was expecting eh? :)
“Jefferson wasn’t at the Philly convention. No reference was made to either TJ or Vattel either.”
Items were found containing the word Vattel
Items 1 through 8 of 8
1 Farrand’s Records —KING Wednesday 27. June5
2 Elliot’s Debates —Wednesday, June 27.
3 Journals of the Continental Congress —FRIDAY, NOVEMBER 25, 1785.
4 Farrand’s Records —MADISON Wednesday June 27. in Convention
5 Farrand’s Records —YATES Wednesday, June 27th, 1787.
6 Elliot’s Debates —Wednesday, June 27, 1787.
7 Journals of the Continental Congress —TUESDAY, OCTOBER 17, 1780
8 Journals of the Continental Congress —TUESDAY, AUGUST 29, 1786.
Obviously for many here, Emerich and Orly decide.
*actually the last time this issue was given serious consideration by Congress, was when Romney’s father was in the GOP primary before he dropped out.
It was legal research, was read into the Congretional Record, and found that Romney was NOT eligible, as he was born in Mexico.
The research further noted that “natural born” and “native born” had been used interchangably during our history, and held the same meaning.
That view appears to be the most widely accepted today.
John C Fremont was apparently born out of wedlock to an American mother and a French Immigrant, but the trollop may still have been married to an American. I'm sure that somehow make it OK and therefore doesn't count.
http://en.wikipedia.org/wiki/John_C._Fremont
All joking aside, I had never read about Fremont before. That was interesting.
Yep. We we warned, weren't we, long ago?
algore 2000. What a mess. Our idiotic FL Supremo Court allowed David Bois and the Wooden Indian to flout election law and demand hand recounts. IIRC we were about to miss either the Constitutionally required day to vote, or the day to send our votes to the US Senate. Actually, those events lent to my point; keep courts out of it.
Okay, so where in the process do you think a federal court should step in? Let's say for argument that Rubio is running for Prez and his parents were not US citizens at his birth in FL. What should be done about it?
Okay, go for it! Let’s hear what was said. Did NBC come up?
Oh, like I never read that sentence before. :)
I have never argued that children born in a country of parents who were its citizens were not NBC. But that same legal authority immediately says (as I'm sure you know), "Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents." I remain convinced that that "further" applies to "natives, or natural-born citizens," not to citizenship in general.
Otherwise people end up arguing that "native" and "native born" mean different things; or that when a legal authority refers to the Constituional requirement that the president be native born, he's not actually using the Constitutional term but it's okay because native born includes natural born. These arguments strike me as silly. Things make so much more sense when you accept the fact that "native," "native born," and "natural born" all mean the same thing and always did mean the same thing.
My larger point is that if a court utilized all of the thorough research done at FR and determined Rubio was not NBC, it wouldn't matter. The State legislatures and Senate are charged with getting us a President.
It is why a federal court may help pry a birth cert out of somewhere, but will not act on it either to remove a sitting Prez or keep a candidate off a ballot.
Hmm, regarding Popes and a book I did not read, didn't Dante's Inferno place the Pope of the time in the lowest circle of Hell?
Imagine if he was the GOP nominee, electoral votes had been cast for Romney, he won, and before the votes were counted in the Senate, THEN it was positively revealed he was born in Mexico.
Pure political case at that point. Scotus would grab some popcorn and beer and watch the action like the rest of the world.
Okay. Was there reference to citizenship, native born . . . anything related to any quote I may have missed at the Convention?
Okay. More post-Constitution analysis.
A professor of Constitutional law tells us Vattel’s page 101 section 212 is used in the Constitution.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.