Posted on 12/28/2011 5:34:17 PM PST by rxsid
"THE PUBLIUS ENIGMA: Newly Revealed Evidence Establishes That President James Madison’s Administration Required Citizen Parentage To Qualify Native-Born Persons For U.S. Citizenship.
I was recently forwarded an incredibly amazing article from the October 10, 1811 edition of The Alexandria Herald newspaper. RXSID of Free Republic sent it with a brief note, stating, “Check out this case.” The Herald article is entitled, The Case of James McClure. The author is…PUBLIUS.
Publius was the pseudonym used by Alexander Hamilton, James Madison, and John Jay, for their anonymous authorship of The Federalist Papers. By 1811, Hamilton was dead and Jay retired. My research leads me to believe that the article was written by James Madison, but this has not been conclusively established yet. Regardless of authorship, Madison was President at the time the article was written, and it discusses the official position of his administration denying U.S. citizenship based upon simple birth in the country.
The official position of the Madison administration was that persons born in the U.S. to alien parents were not U.S. citizens. This was the ruling concerning James McClure, despite the fact that his parents had been settled in the country for many years prior to his birth. The article makes clear that the United States Minister to France, General Armstrong, refused diplomatic protection for McClure by denying he was a citizen of the United States.
This was the official decision despite McClure having been born in South Carolina in 1785 to a father who was naturalized months later in 1786. Armstrong informed the French authorities that the man was not a U.S. citizen, and McClure was left in French custody. The article by PUBLIUS indicates that Armstrong might have mis-applied the 1802 Naturalization Act, but PUBLIUS also makes clear that McClure was not a citizen by virtue of his native birth in South Carolina:
There was no statute in South Carolina in 1785 which granted citizenship to persons born there similar to Virginia’s statute mentioned in the article by PUBLIUS. Simply being a “son of the soil” was not enough, and this evidence repudiates the contention that the British common law had been adapted in all of the states after the revolution. Since there was no statute in place making those born in South Carolina citizens, McClure was not held to be a native-born citizen. That argument was utterly rejected throughout the affair.
The article goes on to question whether the 1802 act is defective in that PUBLIUS seems to believe citizenship ought to be revoked for naturalized persons who return to their original country and establish domicile there again. But the article makes clear that Madison’s administration steadfastly denied that simple birth in the United States was enough to establish citizenship. This, of course, discredits the conclusions of Justice Horace Gray in U.S. v. Wong Kim Ark, as well as the infamous New York Chancery opinion of Lynch v. Clark. Both cases contain erroneous assumptions that the British common law rule of jus soli governed citizenship from the very genesis of the United States.
I tracked down the original article published in the Richmond Enquirer on October 1, 1811, which was then republished in The Alexandria Gazette on October 10, 1811. Both of these newspapers were published in Virginia, Madison’s home state. Furthermore, the PUBLIUS penned article was the grand finale of nearly a year-long argument which went viral in various newspapers of the day starting in January 1811.
I have been up and down the East Coast tracking down the remaining newspaper articles on this as well as other supporting historical information. I have also consulted with professionals and am preparing an extensive section for my forthcoming book which details everything that has been unearthed.
The whole story cannot be understood by way of online searches. The internet is barren on this case. Some of the necessary information isn’t even available in the Library of Congress or National Archives.
Here are the images from the Alexandria Herald and Richmond Enquirer. The Herald scan is much easier to read than the Enquirer scan.
Leo Donofrio, Esq."
Look, the words are the same ~ doesn’t take an activist judge to understand what “born” means.
A related bit of information includes this effort in congress to bar citizenship for the children of Aliens that leave the country.
It is to point out that the rules for being considered a citizen of a State are not necessarily the same as those required to be a Federal citizen.
State citizens could be created by Jus Soli,(as in Virginia after 1792. Prior to 1792, they had to be Jus Sanguinus to be a citizen of Virginia. New York passed a law in 1845 requiring Jus Sanguinus to be a citizen.) but apparently Jus Sanguinus (or naturalization) is required for possessing Federal Citizenship.
There is a very good reason for this. Interpreting it the other way does not accomplish the purpose for which the Article was created in the first place!
Anchor babies for President? Reductio ad Absurdum.
Vattel gave a very clear definition of natural citizenship that they would have been familiar with, plus they translated the French word "naturel" (as used by Vattel) as "natural-born" ... meaning they would have read his principles on naturel citizens as "natural-born citizens" ... those person who are born in the country to citizen parents. It is a definition for which there is no doubt as the Supreme Court clearly stated nearly 100 years later.
Thank you for the ping :)
I am sitting back to see how this whole mess unfolds ... :p
No, it's not "very clear," especially since SCOTUS has held otherwise. You may want to believe that, but SCOTUS does not agree, and like it or not, they interpret the law and the Constitution and we're bound by what they decide unless we change the law, the Constitution, or the Court. And since the Court, with four Conservative justices, has consistently declined to hear Donofrio's (and others') cases, I doubt changing the Court would help in this matter. This has been held to be settled law.
What part of "Mr. McClure ought to have been held as a citizen of the United States" are you claiming Publius didn't say?
You point out it is an "effort" but show no evidence it ever passed, so I assume it didn't. The history of Congress is littered with "efforts" that go nowhere and thus are not law.
This quote (no specific cite that I see, I assume from Congressional Globe?)
The committee on the Judiciary be instructed to inquire into the expediency of so amending the law on the subject of naturalization as to exclude those from the privileges of natural-born citizens who are or shall be born of parents who have been removed or shall remove from the United States...could have interesting implications. The Congressman doesn't specify that he is speaking of children of citizens, as opposed to those born on US soil of aliens (in which case he acknowledges they have privileges of natural born citizens.)
It’s not what I want to believe, it’s what SCOTUS has said. See Rogers v. Bellei.
The “anchor baby” was created by a court decision that was NOT based on law but stands because the executive and legislative branches of our government have not stood up to the courts and exercised their authority as Newt has pointed out, something he intends to rectify.
The SCOTUS didn't hold "otherwise" until AFTER the 14th amendment, and they still had to include a domicil requirement to fit the subject clause of the 14th amendment ... so their holding is still clear that place of birth ALONE is NOT sufficient to create citizenship for the children of foreigners. Read U.S. v. Wong Kim Ark.
What part of "Mr. McClure ought to have been held as a citizen of the United States" are you claiming Publius didn't say?
I didn't make such a claim. Learn to read. I explained that what Publius said was based on the naturalization of the father, not place of birth. You seem to have completely ignored this in spite of that fact that it's in the first sentence of my comment that you replied to:
The error (as explained in the text) is on the basis of the naturalization of the father, not place of birth.
Rogers v. Bellei doesn’t say what you think.
You point out it is an "effort" but show no evidence it ever passed, so I assume it didn't. The history of Congress is littered with "efforts" that go nowhere and thus are not law.
I don't know if it did or if it didn't, but the mere fact of it's existence clearly demonstrates that they did not regard the children of Aliens as "natural born citizens" because if they did, they would not be debating the taking away of one of their inalienable rights.
Rogers v. Bellei: “We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.”
If the requirements for President clearly said the President must be a man, would you pretend that it didn't, or simply bemoan the fact that it isn't up to the current standards of political correctness?
Whether the Standards of Article II meet "modern" ideas of fairness is completely irrelevant to the fact that it means today what it meant in 1787, up until it is changed by Amendment.
It would seem to imply the opposite - that the Congressman acknowledged they had "privileges of natural-born citizens" but wanted to remove those privileges by statute.
I have read it. I have also seen you take one place where Justice Gray quotes Justice Waite as the end all of the decision, and ignore all the other quotes, as well as the implications of the decision. To paraphrase another poster: Wong Kim Ark doesn't say what you think it does. The proof of that is Rogers v. Bellei, WEEDIN V. CHIN BOW, 274 U. S. 657 (1927)
The very learned and useful opinion of Mr. Justice Gray, speaking for the court in United States v. Wong Kim Ark, 169 U. S. 649, establishes that, at common law in England and the United States, the rule with respect to nationality was that of the jus soli, that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute;
I should have added a /sarc tag. I read your post. You claim an error, but you have not in any way discredited that Publius thought Mr. McClure should have been judged a United States citizen.
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