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."
Perhaps you need to read Rogers v Bellei more carefully? Bellei was a "jus sanguinus" citizen, which equals citizen by statute (naturalization act of 1952). This means his citizenship could be subject to laws passed by Congress. He was not a jus soli (natural born) citizen, which can't be affected by such laws. Rogers v Bellei explicitly affirms that the US follows English common law in jus soli.
Also I am continuously puzzled by those who keep saying "let us see what SCOTUS said!" as opposed to "Let us read what the FOUNDERS said." The former argument implies that there are those of you who do not know what to think unless a third party tells you what your opinion should be.
All you are doing is changing which third party you think is controlling. The reason many look at what SCOTUS said is because the Constitution says
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States...SCOTUS gets to interpret the Constitution. What SCOTUS says is the law of the land, whether we like it or not.
I agree that it can't be restricted or diminished in any way. However, Congress can decide that certain categories of statutory citizenship are indeed "natural born" - such as children of military serving overseas, etc.
Your own sentence makes my point. That they HAD removable "privileges" indicates they are different from "natural citizens" because a "natural citizen's" privileges are not removable.
No, the privileges were not removable - which is why such attempts were voted down in Congress. Misguided congressmen are forever coming up with unconstitutional legislation - fortunately much of it dies a quick death.
The future, like November, 2012.
Sorry, but this is your typical lazy excuse to avoid admitting you've lost the argument ... again.
Look at Rogers v. Bellei, that decision is clear that birth on the soil is sufficient.
Not for natural-born citizenship. Try being intellectually honest. Here's what the court said:
Apart from the passing reference to the "natural born Citizen" in the Constitution's Art. II, § 1, cl. 5, we have, in the Civil Rights Act of April 9, 1866, 14 Stat. 27, the first statutory recognition and concomitant formal definition of the citizenship status of the native born:
Do you understand what this says??? It's saying there was NO formal definition of "native born" citizenship until the Civil Rights Act, but it doesn't affirm anything about "birth on the soil" being sufficient to obtain citizenship. Instead, this is conditional (which would preclude Obama):
"[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States. . ."Where is your SCOTUS case confirming "NOT legally characterized as natural-born"?
Minor v. Happersett. It describes two classes of birth citizens. ONLY ONE is characterized as natural-born. We've been over this. All you do is deny and/or bail out when you can't refute the facts.
Several courts have affirmed that much of the US Constitution and law follows English common law. SCOTUS has said specifically that the US follows this in jus soli citizenship.
... only through the 14th amendment and statutory law, BUT subject to other conditions and requirements. Natural-born citizenship is a combination of jus soli AND jus sanguinis without any other requirements. The court made this clear in three cases that I've already cited, plus in TWO more cases that you've cited.
In English common law "born on the soil" equals "natural born" (usual diplomatic and military exceptions.)
This is statutory naturalization when it concerns the children of foreigners and aliens. Such persons have to have actual obedience to the crown. There's nothing equivalent to this in the United States ... at least not UNTIL the 14th amendment, but that is NOT natural-born citizenship. The court said specifically that the 14th amendment does NOT say who shall be natural-born citizens. You can't get around this inconvenient fact, so you might as well admit you're wrong and save yourself further embarrassment.
Further for your fantasy that "14th amendment citizenship" is somehow different than "non 14th amendment citizenship, " see Rogers v Bellei, quoting Afroyim v Rusk:
It was explained quite specifically in Wong Kim Ark. NBC is defined OUTSIDE the Constitution. The so-called fundamental rule of "citizenship by birth" was defined BY the Constitution through the 14th amendment. These are TWO different types or classes of citizenship. Also, you're relying on a quote from the dissent in Bellei about NATURALIZATION which was describing comments from Afroyim that were used only in conjunction with the PROTECTION of citizenship in relationship to naturalization. Here's the majority quote from Afroyim:
Held: Congress has no power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof. Perez v. Brownell, supra, overruled. Pp. 387 U. S. 256-268.
(a) Congress has no express power under the Constitution to strip a person of citizenship, and no such power can be sustained as an implied attribute of sovereignty, as was recognized by Congress before the passage of the Fourteenth Amendment, and a mature and well considered dictum in Osborn v. Bank of the United States, 9 Wheat. 738, 22 U. S. 827, is to the same effect. Pp. 387 U. S. 257-261.
(b) The Fourteenth Amendment's provision that "All persons born or naturalized in the United States . . . are citizens of the United States . . ." completely controls the status of citizenship, and prevents the cancellation of petitioner's citizenship. Pp. 387 U. S. 262-268.
This doesn't say anything about the 14th amendment conferring citizenship on NBCs nor that it redefines citizenship for NBCs. Nothing here undermines nor changes the fact that the Wong Kim Ark decision affirmed and upheld the Minor definition of NBC ... and affirmed that NBCs were excluded from the operation of the birth clause in the 14th amendment. That the rest of the amendment applies to NBCs is not disputed. It does not confer citizenship on NBCs.
I do not see how you can interpret it that way, but I would rather discuss a different point.
All you are doing is changing which third party you think is controlling. The reason many look at what SCOTUS said is because the Constitution says
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States...
The legal authority of the Judges is derivative from that of the lawmakers. If the lawmakers PASS a law, and it is not unconstitutional, then the Judges are obligated to enforce it as the LAWMAKERS have decided, not the other way around. It is not *I* who is confused at which is the controlling authority. The Judges are merely the guards of enforcement, not the creators of new law. (At least not the way the system was SUPPOSED to work. The system is currently dysfunctional.)
When it is clearly obvious that the judges are not complying with the intentions of the Lawmakers, it is the judges who are in the wrong, not the lawmakers.
SCOTUS gets to interpret the Constitution. What SCOTUS says is the law of the land, whether we like it or not.
What SCOTUS says is the DOCTRINE which gets enforced. It may or may NOT be the "law of the Land" because SCOTUS has been known to make Sh*t up as they go along. Roe v Wade is a prime example, and so is Kelo v New London.
It is a matter of rock solid belief among conservatives that the Supreme Court doesn't actually enforce the law, they apply whatever political doctrine happens to be in the ascendency in the majority of justices at the time.
If you have a majority of Liberal Justices, you are going to get a bunch of Liberal bullsh*t decisions. If you have a majority of Conservative Justices (not since the 1930s.) you will get sane decisions. What is actually the law has not a d@mn thing to do with what SCOTUS will decide. Do you think for a minute that Kagan or Soetomanure would not vote against the second amendment?
Do you think Senator Howard and Representative Bingham were familiar with the term "natural born citizen?"
Congress cannot redefine the meaning of a constitutional requirement. Such a thing can only be accomplished through an amendment. (Which Democrats have been trying to do repeatedly for the last 20 years.)
Were the "jus soli" theory correct, it would have prevented any attempt to pass such a law. The fact that they attempted to pass such a law demonstrates that the jus soli theory cannot be correct.
Let me reiterate. If the common understanding of the time was that being born here was all that was required, the idea of denying citizenship to those born here would never have been discussed. The fact that it WAS discussed, PROVES that "jus soli" was NOT the common understanding of the time. If birth on the soil was believed to imbue the natural right of citizenship, it would have been pointed out immediately by all and sundry that you cannot take away a natural right. It would never have made it as far as the committee, let alone be discussed by the committee.
Oh, I see. So congress can pass a law saying all naturalized citizens are "natural born", and Arnold can run for President?
<snicker> Fail!
NBC is defined OUTSIDE the Constitution.
Those of your beliefs claim it was defined by a Swiss author. SCOTUS cases have said it was adapted from English Common Law. Want to guess what English common law says about "natural born"? It is "born on the soil". We've been through this but you refuse to believe it. Despite many Justices, law texts, etc. explicitly saying that much of the Constitution comes from common law.
The so-called fundamental rule of "citizenship by birth" was defined BY the Constitution through the 14th amendment. These are TWO different types or classes of citizenship.
You keep claiming that, but have nothing to back it up. The US Constitution, and US law recognizes two classes of citizens only - natural born and naturalized. Nowhere does it speak of "not natural born and not naturalized citizens". Good try.
Minor v. Happersett. It describes two classes of birth citizens. ONLY ONE is characterized as natural-born. We've been over this. All you do is deny and/or bail out when you can't refute the facts.
On the contrary. You are falling into a composition fallacy - Minor v Happersett said [emphasis added]
As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts.Are you intellectually honest enough to acknowledge what this means? The Justice describes one group as natural born citizens, and explicitly says this case will not address other groups which may or may not be categorized as natural born. One again - IT WAS NOT ADDRESSED IN THIS CASE. So you can stop claiming Minor v Happersett backs you up, because it doesn't.
"SCOTUS has said specifically that the US follows this in jus soli citizenship."
... only through the 14th amendment and statutory law, BUT subject to other conditions and requirements. Natural-born citizenship is a combination of jus soli AND jus sanguinis without any other requirements. The court made this clear in three cases that I've already cited, plus in TWO more cases that you've cited.
Funny, you claim other conditions and requirements, a combination of jus soli and sanguinus, but I don't see those in the Constitution, or in any current law. If you want to go back to when it was only White men, you can find conditions that no longer apply.
Your understanding of English common law, it appears to be deficient. You say "This is statutory naturalization when it concerns the children of foreigners and aliens. Try reading WKA more carefully. From WKA
except insofar as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In this as in other respects, it must be interpreted in the light of the common law,and
The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.. As to English common law, it is quite clear that born on the soil (usual diplomatic and military exceptions) is natural born. From WKA
The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects.To clarify for you - children born in England of alien parents (as long as they were not at war with England) are natural born.
Nothing here undermines nor changes the fact that the Wong Kim Ark decision affirmed and upheld the Minor definition of NBC ... and affirmed that NBCs were excluded from the operation of the birth clause in the 14th amendment.
Good try. That's not what Minor said (instead it said there was doubt, which it wouldn't address), and WKA did not "uphold" Minor v Happersett. It also didn't affirm anything about NBCs being excluded from anything in the 14th amendment.
the court said specifically that the 14th amendment does NOT say who shall be natural-born citizens. You can't get around this inconvenient fact, so you might as well admit you're wrong and save yourself further embarrassment.
And the court goes on to say that "natural-born" must be interpreted in light of the common law. See above quotes for what the common law says about natural born. You are the one who should be embarrassed by either your lack of reading comprehension, or your refusal to acknowledge what is clearly stated.
We went through this already, if I recall correctly. Wasn’t it you who claimed Rogers v. Bellei was decided by lib dem judges, and I showed that wasn’t the case?
I know very well SCOTUS can be wrong, possibly corrupt, or just downright nuts. As I think you know, I get pretty livid about Kelo. But as to natural born, Rogers v. Bellei was merely a clearer statement than most of something that the courts have pretty consistently held. We follow English common law in this, and born on the soil (usual exceptions) equals natural born.
If you don’t want it to be that way, get the Constitution changed. Don’t claim that it says something it doesn’t, or that the courts have held something they haven’t. I doubt you’re going to change even Justice Scalia’s mind on this.
How many Congressman have brought up laws that turned out to be unConstitutional? Do you think it never happens?
No, because naturalized is a pretty clearly understood concept. However, there are gray areas - for instance many think it is still unclear if those born overseas of US citizens are "natural born". Hence the questions about John McCain born before 8 U.S.C. § 1403 took effect in 1937.
And to all, Happy New Year. I’m offline for the next few days.
The SCOTUS definition matches nearly verbatim. This has been proven.
SCOTUS cases have said it was adapted from English Common Law.
This is factually incorrect. The only definition of natural-born citizen formally used by the court is a verbatim match from the law of nations.
Despite many Justices, law texts, etc. explicitly saying that much of the Constitution comes from common law.
Sorry, but you are wrong. I've cited the specific passages on this several times DIRECTLY from the SCOTUS and in direct application to Article II. The only thing you have is a connect-the-dots distortion of what these cases actually say. It's time to quit deceiving yourself.
You keep claiming that, but have nothing to back it up.
I've posted exact quotes directly from the Wong Kim Ark decision. You're not being honest. Time to fess up.
The US Constitution, and US law recognizes two classes of citizens only - natural born and naturalized.
Wrong. There are SEVERAL classes of citizenship that are based on two SOURCES of citizenship. Both the Minor and Wong Kim Ark cases point out several different classes.
On the contrary. You are falling into a composition fallacy - Minor v Happersett said
What you've cited is NOT contrary to what I've said, nor have I made a composition fallacy, plus YOU'RE ignoring the sentence that shows the court recognizing TWO classes of citizens by way of birth. When it says it's not necessary to solve doubts, it's because the class of citizenship that applied to Virginia Minor fit the Article II characterization of natural-born citizenship. If it didn't fit the NBC definition, then there are doubts that need to be solved. Read it. Learn it. Understand it.
The Justice describes one group as natural born citizens, and explicitly says this case will not address other groups which may or may not be categorized as natural born.
You're misreading it. This is YOUR composition fallacy. The doubts that are expressed are whether the second class of persons are citizens, NOT whether they can be categorized as natural-born. If they were natural-born, there would be no doubts to solve. For the passage to mean what you want it to mean, it would have said something like this:
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. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [p168] parents. These two classes were natives, or natural-born citizens, as distinguished from aliens or foreigners, although to the latter class there have been doubts, but never as to the first.
Further, we know that the Minor definition of NBC ONLY applied to the one criteria of citizenship because Gray told us so in Wong Kim Ark:
In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: "The Constitution does not, in words, say who shall be natural-born citizens."
Do you understand?? In order for your interpretation to be accurate, Gray would have said, "When construing the 14th, Justice Waite said there is doubt about whether the Constitution says who shall be natural-born citizens. To solve that doubt we must use common law." But, it doesn't say that. By saying the definition is OUTSIDE the Constitution, it means that classification of citizens with doubt CANNOT be used to say who shall be NBCs.
Funny, you claim other conditions and requirements, a combination of jus soli and sanguinus, but I don't see those in the Constitution, or in any current law.
Are you really this stupid??? What part of OUTSIDE the Constitution do you not understand?? When construing the 14th amendment, the Constitution doesn't define NBC. That's what the court said. Waite used the law of nations criteria of jus soli AND jus sanguinis ... and this is AFFIRMED when the Wong Kim Ark decision says:
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 ....
BOTH criteria are there. Do you see it????? It's time to start being honest, lurker.
To clarify for you - children born in England of alien parents (as long as they were not at war with England) are natural born.
We're not discussing citizenship law in England. Keep up. "In light of" does NOT mean "in strict adherence." We know the founders rejected English common law on citizenship because they had to in order to be recognized as U.S. citizens.
And the court goes on to say that "natural-born" must be interpreted in light of the common law.
Sorry, but this false. It says the 14th amendment must be interpreted in light of the common law. You posted the citation that proves you're wrong on this very point. It's time to admit your errors.br
Maybe, that sounds vaguely familiar. I have become accustomed to stupid court decisions being the manifestation of Liberal Judges.
I know very well SCOTUS can be wrong, possibly corrupt, or just downright nuts. As I think you know, I get pretty livid about Kelo.
If you acknowledge that the courts can be wrong, why do you turn to them as the first source of proof? Why do you not start with primary sources and work your way forward to what courts latter said? (and thereby determine where the courts made a mistake in their reasoning or application of the law.)
But as to natural born, Rogers v. Bellei was merely a clearer statement than most of something that the courts have pretty consistently held. We follow English common law in this, and born on the soil (usual exceptions) equals natural born.
I disagree that the courts have consistently held. Look up ex parte Reynolds for example. I also point out the obvious contradiction of using English law as the basis of citizenship when that very same bit of law made it illegal for us to throw off our British Subjectude.
If you don’t want it to be that way, get the Constitution changed. Don’t claim that it says something it doesn’t, or that the courts have held something they haven’t. I doubt you’re going to change even Justice Scalia’s mind on this.
That is certainly true if his response to someone asking him to consider it is that they don't have a right to ask him the question. (Standing.)
I don't think you are comprehending the point. Let me try to clarify again. It is well known that congress cannot pass any ex post facto law. If a congressman attempted to pass an ex post facto law, it can be reliably assumed that every other congressman would tell him "No, you cannot do that! The constitution does not allow you to do such a thing."
An attempt to pass an ex post facto law would not even get introduced as a bill, let alone make it into a committee hearing, because everyone would shoot it down as being unconstitutional the minute it was brought up.
Now, consider that if everyone understood that birth within the boundaries makes a person a "natural born citizen", the very instant someone tried to pass a law denying this fundamental right to the children of foreigners, every member of congress would have stood up and said "You cannot DO THAT !" It would not have even been introduced as a bill, and it certainly would not have been sent to a committee for discussion.
It was not dismissed, it was accepted as a legitimate bill and referred to the committee of the judiciary. If your theory was correct, it would have been unthinkable to even look at the idea.
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