Posted on 01/24/2012 5:37:37 PM PST by Danae
Some have written to ask me whether the Law of Nations is based on natural law, and whether this creates a contradiction to my argument in the Amicus Brief I have submitted in the Georgia POTUS eligibility cases. The answer is no, it is not a contradiction in any way, shape or form. And here’s why:
Customs of international law have developed over millenia as nations have confronted each other. These customs created international law, aka, the Law of Nations.
The Law of Nations respects the sovereignty of each nation, and each nation’s right to worship God as they please, or not to worship God at all. When this custom is violated, wars are inevitable. Natural law under the Law of Nations, therefore, must be non-denominational (including Atheism).
Furthermore, Vattel’s famous treatise didn’t create the Law of Nations. His text is an observation of customs that developed between nations, such customs going back centuries well before Christ walked the Earth.
Christian nations, Atheist nations, Islamic nations, etc., all respect customs of the Law of Nations, but they do not share the same concepts of natural law. To a Pagan, nature is God. To a Marxist/Atheist, science is God. And so on… But all nations do agree that procreation is part of nature.
The English common law was absolutely Christian, and their entire system of Government was based upon their unique view of natural law being issued directly from Jesus Christ as enforced by the English monarch.
I am a Christian, but I do not want religion being established in our government. Jesus said, “Give unto Caesar what is Caesar’s, and give unto God what is God’s.”
Those who believe in Christ, believe natural law emanates from Christ, and those who believe in Allah, believe natural law emanates from Allah. The same is true for those who worship the sun, or the elements, or the stars.
The English common law has Christ at the head of its government, with the King as his main man on Earth. That was the rule of natural law for their nation. Other nations had different concepts of natural law. Again, to a Marxist/Atheist nation, science is natural law. So, with regard to the international community as governed by the Law of Nations, natural law is non-denominational, and even non-spiritual for Atheist nations.
There is a fundamental distinction between natural law in the international community, and natural law under the English common law.
Our Constitution forbids the establishment of religion, while respecting the rights of all persons to worship God or nature as they like. The English common law is in direct polar opposition to our Constitution, in that infidels were considered enemies of the state. In Calvin’s Case, which is universally recognized as having established the English common law with regard to the jus soli rule, the decision makes it perfectly clear that the English common law presumed infidels would never be converted to Christianity, and it specifically states that they are subjects of devils.
Hence, one could be born on English soil, in the King’s castle even, to parents who loved the King, but if the parents weren’t Christian, they could not be natural-born subjects. Instead, they were considered enemies of the King, because they refused to believe that the King was God’s monarch on Earth. This is not “natural law” to anyone who wasn’t Christian.
The English common law’s uniquely Christian definition of natural law governs the English common law concept of natural subjection/natural allegiance. And that is why the English common law definition of “natural-born subject” can never be judicially recognized as synonymous with “natural-born citizen”. Such a construction of Article 2, Section 1, would be directly repugnant to the 1st Amendment.
IT COMES DOWN TO STATUTORY CONSTRUCTION.
Perhaps due to the sensitivity of the spiritual concepts discussed in my Amicus brief, people have not been as focused upon my first point in the brief, which is the most important point, and it’s the simplest as well.
The rules of statutory construction in this nation forbid the construction of any clause in the Constitution that renders another clause inoperative. Each clause, and each word of each clause, must be given separate and unique meaning. When the legislature enacted the 14th Amendment, it did not include the word “natural”. The Amendment states that persons born in the country, subject to the jurisdiction thereof, are citizens. It does not say that they are natural-born citizens.
The legislature could have drafted the amendment so that those born here were deemed to be “natural born Citizens”, but the legislature didn’t. And our federal courts are barred, according to the rules of statutory construction, from holding that the 14th Amendment creates natural-born citizens. Had Congress intended the Amendment to do that, their intention to do so must have been clear and manifest. Therefore, such a construction is not only wrong, it is inadmissible according to Chief Justice Marshall’s majority opinion in Marbury v. Madison.
The issue now confronting the nation as to the true Constitutional meaning and intention of the natural-born citizen clause is not as complex as it appears. When one analyzes it in the context of the firmly established rules of statutory construction, it becomes clear that 14th Amendment citizenship is not, by itself, enough to be POTUS eligible. In order for a court to hold that 14th Amendment citizenship alone makes one a natural-born citizen, the court would be required to completely overrule the very foundation of law in this country; checks and balances created by the separation of powers.
Perhaps the judicial branch is willing to do that to protect President Obama from the Constitution’s authority. But in doing so, the judiciary would destroy our legal system. This is because such a construction would be a complete usurpation by the judicial branch of the power granted by the Constitution to Congress.
Therefore, the only possible way to Constitutionally construe the natural-born citizen clause is to require something more than 14th Amendment citizenship. That something more is citizen parentage. And that is exactly how the Supreme Court construed it in Minor v. Happersett, 88 U.S. 162 (1874).
I have not had a chance to read through this yet, I am headed out the door for a meeting!! I am too rushed tonight! ACK!
***Ping*** to the usual suspects!
"Christianity neither is, nor ever was, a part of the Common Law."
"For we know that the Common Law is that system of law which was introduced by the Saxons on their settlement of England, and altered from time to time by proper legislative authority from that time to the date of the Magna Charta, which terminates the period of the Common Law ... This settlement took place about the middle of the fifth century. But Christianity was not introduced till the seventh century; the conversion of the first Christian king of the Heptarchy having taken place about the year 598, and that of the last about 686. Here then, was a space of two hundred years, during which the Common Law was in existence, and Christianity no part of it ... That system of religion could not be a part of the Common Law, because they were not yet Christians."
- Thomas Jefferson, letter to Dr. Thomas Cooper, February 10, 1814, responding to the claim that Chritianity was part of the Common Law of England, as the United States Constitution defaults to the Common Law regarding matters that it does not address.
"... the Common Law existed while the Anglo-Saxons were yet pagans, at a time when they had never yet heard the name of Christ pronounced or knew that such a character existed."
- Thomas Jefferson, letter to Major John Cartwright, June 5, 1824.
A good read and logical conclusion. IMO
“Our Constitution forbids the establishment of religion, while respecting the rights of all persons to worship God or nature as they like.”
This is a misleading statement. The Constitution prevents “Congress” from making any law regarding establishment of religion. In other words, the FEDS are out of the establishment or dis-establishment business.
Establishment or dis-establishment of religion is exclusively a matter for the states. In fact, some states had established religions at and after the passage of the bill of rights. Of course, our “living constitution” federal judges have turned the establishment clause completely on its head by interfering with states decisions about religion.
Woah, there - not quite.
The Constitution MAKES States ON CONDITION that the people in those States are accorded the freedoms, specified or not, acknowledged by the Constitution.
Which means the "freedom of religion" acknowledged as pre-existing by the 1st Amendment is not a creation of the Federal government, but something the Constitution acknowledges as God-given to human beings - "the people." And as the States cannot abridge those God-given freedoms, they cannot violate those 1st amendment rights.
In fact, the original purpose of the federal government was to stop the States if they tried to abridge the Constitutional freedoms of the people.
Instead, of course, the Feds have declared themselves the sole governmental power and refuse to acknowledge any limitations by the States, a claim they had to contrive through presumption of 14th Amendment federal citizenship upon the entirety of the populations of the 50 States - something not intentend not forseen by the Founders (except maybe Hamilton).
Colin Rhys Lovell’s English Constitutional and Legal History, Oxford University Press, c1962
EARLY ANGLO SAXON -The law applied by all assemblies was unwritten, unlegislated, customary law and was considered immutable. It was a law of torts, designed to prevent feuds, which assigned damages to be paid for injury to persons or property, commensurate with the social value assigned to the injured party. Anglo-Saxon law was folk law and unwritten until conversion to Christianity. It was passed down orally in “dooms” or judgements. The law was ancient, God-given and unchangeable. By ordering that the law be written as a doom to resolve local variations of custom, only one variation survived, bringing continuity in the law. Consequently, no set of recorded dooms gave the complete body of the law existing in the kingdom at that time.
LATE ANGLO SAXON - By the sixth century, non-celtic England had been divided into the “Heptarchy” or seven kingdoms. The right to possess and use land maintained through community memory was “folkland.” Later, Christianity introduced the concept of granting land by written charter, or “bookland.” The chief grantor was usually the king and the chief beneficiaries of “bookland” were the great “blafords” or “lords” and the Church.
The public court system was gradually absorbed by the private manorial system. Freemen who found their lands folded under bookland, were more likely to participate in the manorial court since absence could result in the loss of holdings within the manor. Manorial court operated much as the public assembly courts, but included all persons on the manor and all the judicial revenues of the court went to the lord instead of the community.
NORMAN - Norman (French), William the Conqueror, took over the rule of England in 1066 A.D. The lands of the conquered English lords reverted to William or were confiscated. The king was lord (owner) of all the land, and everyone else merely “held of him.” The king held of no man. The land was then divided into estates and granted to Norman barons who held them as “fiefs” or “fees” of the king. (feudalism)
Feudal law operated alongside the old Anglo Saxon law without conflicting, each with separate courts. Jurisdiction was different. There were a series of laws for different people and for different purposes:
Criminal law remained unchanged. Substantive feudal law was one of contracts, while Anglo-Saxon law ascribed to monetary payments for injuries.
EARLY ANGEVIN AND THE MAGNA CARTA (1154-1216) - “Common Law” came to be known as such because it was a law common to the entire realm.
The essence of common law was case law. There is no single repository for the law on any subject. Law was once-given and immutable. There was no codified system of legislation. Specific cases and the recorded decisions of the courts were the law and the courts generally worked from prior precedent. Their duty was not to make laws, but to “declare” the law as it had been known in the past. Angevin justices were collectors of verdicts which they reviewed (”stare decisis”), and upon which they issued administrative orders maintaining that continuity to be discharged according to their instructions.
Until the time of Henry II, there was only one system of law. Courts “belonged” to certain lords who had the right to their revenues. By virtue of the royal prerogative, administrative changes were introduced which essentially produced a new form of law, which could only be administered in the royal courts. In effect, this expanded what was the baron court of the king as liege lord of the people. Crime, instead of being regarded as an injury to an individual, became a violation of the king’s peace, an affront to his dignity.
The “writ” was a written royal order to someone to do something. The “inquest” was a method by which the king secured information on a particular matter. The “jury” originated in the practice of having commissioners put certain men under oath to report on specific topics. Juries were selected from men of standing in the community directly by the king or his agents on the presumption that they would know the relevant facts. There was no sworn evidence submitted to the court. If the jury did not know the facts, they were supposed to go out and find facts on their own. The jury was concerned only with the facts, not the law. It was the duty of professionals to apply the law to the facts. There were no set numbers for men on the jury, but as the jury represented the community as a whole, its opinion was to be true and unanimous.
A private person could petition the king as “the fountain of justice.” Upon receiving the petition and a fee, the curia regis had the Chancellor issue a writ commanding royal administrative-judicial agents to handle the matter along the specific lines set forth in the writ. The royal writ ordered the sheriff (a royal employee) to bring parties before the royal court under pain or “subpoena” of the royal displeasure. The royal justices received writs ordering them to have a jury sworn to answer questions in a specific case. (The assembly no longer acted in the function of the shire court.) Upon the juries answer of the facts, the royal justice applied the “immutable” law and ordered the sheriff to take the appropriate administrative action.
According to Leo’s description of a natural born citizen neither Marco Rubio or Bobby Jindal fit the definition. I hope the R’s don’t try to nominate someone ineligible for VP.
“The Constitution MAKES States ON CONDITION that the people in those States are accorded the freedoms, specified or not, acknowledged by the Constitution.”
The States preexisted the Constitution. They were sovereign nations—each of them. They entered the constitution, which granted limited powers to the FEDS.
One of the limitations on the FEDS was that Congress make no law “respectiing an Establishment of Religion.” That language is pretty clear that the FEDS cannot tell the states whether or not to establish religions. That is consistent with the fact that States had established religions both before and after the bill of rights was passed. It was a state issue.
“In fact, the original purpose of the federal government was to stop the States if they tried to abridge the Constitutional freedoms of the people.”
With respect, this is a bizarre statement. The STATES created the Federal Government not the other way around. The main argument during the proceedings was how much of their power the States should grant to the Federal government. Thus, the first amendment was explicitly a limitation on “Congress.” It was not a limitation of the States—it unambiguously prevented Congress from messing around in any way regarding establishment of religion. That had to include messing around with the State’s activities in that regard. That means Congress couldn’t mess with the states activities in that regard.
The whole “incorporation” of the bill of rights into the 14th amendment argument of the 1940’s - 1960’s on the Supreme Court was the Court’s way of recognizing that the original bill of rights DID NOT apply to the state governments. They invented the “incorporation” by the bill of rights into the later 14th amendement to accomplish this.
Your are, in effect, taking a Warren Court, “living constitution” position in this regard.
Blackstone, the standard expounder of English law, says, “Christianity is a part of the Common Law of England.”Comment. Bk IV. ch. 4.
The same may be said of the United States as far as they have adopted the Common Law of the mother country. It is so declared by the highest courts of New York, Pennsylvania, and Massachusetts, and by many eminent judges, but with this essential modification that those parts of the Common Law of England which imply the union of church and state are inapplicable to the United States where they are separated.
But as Blackstone would remind us, make no mistake about it, the source of the common law was Judeo-Christian.
Justice Strong (l.c. p. 32) says: “The laws and institutions of all the States are built on the foundation of reverence for Christianity.” The court of Pennsylvania states the law in this manner: “Christianity is and always has been a part of the Common Law of this State. Christianity without the spiritual artillery of European countries—not Christianity founded on any particular religious tenets—not Christianity with an established church and titles and spiritual courts, but Christianity with liberty of conscience to all men.”
Hence the laws against religious offences, as blasphemy, profane swearing, desecration of the Lord’s Day, apostasy from Christianity, and heresy.
Of course, The Bill of Rights did not allow for a national religion of any kind and free speech freedoms and freedoms of privacy have eviscerated old common law principles. Thus former common law crimes like adultery and homosexuality based on Christian principles have now been relegated into the history books both here in the US and in the mother country.
According to the U.S. Constitution, there are only two different types of citizenship classes recognized by its law: Citizen of the United States, and Natural Born Citizen.
The Constitution is quite clear. Amendment XIV declared those born within the jurisdiction of the U.S. and its territories and those naturalized are one in the same. It was quite intentional.
Amendment XIV did not say that those born in the U.S. were Natural Born Citizens because it would go against its very definition. The best example of this was Dred Scott. He was not considered a citizen at the time of his birth, nor was his father or mother. Therefore, had Amendment XIV been ratified with verbiage stating he was a Natural Born Citizen, it would have set this definition in stone. It did not, because it could not.
One can go a step further and ask "what is a Natural Born Citizen"? By the U.S. Constitution, someone born in the U.S. without citizen parents aren't Natural Born. Dred Scott is the prime example.
At this juncture, the only three remaining options are (1) one born in the U.S. to a citizen father and a citizen mother, (2) one born in the U.S. to a citizen father and a foreign mother, and (3) one born in the U.S. to a foreign father and citizen mother. When the Constitution was ratified, option (3) never occurred, and therefore was never valid as a form of Natural Born Citizenship.
Is this valid now? That is a question for the U.S. Supreme Court. On face value, it is difficult to predict what they would say. However, at least 5 U.S. Supreme Court decisions have paved precidence, all of which state the father as the deciding factor in natural law citizenship.
... The Law of Nations was never common law. The Law of Nations is an international treatise, whereas common law is national treatise, or one used to define daily "internal" statutes. One can never use common law to define international citizenship law.
I guess Thomas Jefferson didn’t get that “memo”.
:^)
Bookmark for later.
Excellent. I didn’t know Leo filed AC briefs for the GA eligiblity challenges.
He was in France. Blackstone is the English gospel on the Common Law.
‘Gospel’ on the Common Law circa 1,200 years after the fact...
Wrong. Common Law did not develop until English courts were established with written opinions. It is heresy at Oxford and Cambridge to contradict Blackstone and Coke on the English Common Law.
Really well said!!! Very well put and I applaud your use of Dred Scott, which DID have relevant commentary on the meaning of NBC, but many will not touch it as a reference, including myself because of what I personally see as an evil miscarriage of justice when taken as a whole. But it did make relevant points.
Thanks for pinging me to this!
That is some interesting history there. I suppose it all depends on how far back you go into history. Do we take into account the changes when King Henry the 8th removed England from the Holy Roman Church. That is some interesting information however, I will pass it along!
~D
Hum... that’s an interesting perspective. I would imagine that any state making declarations regarding religion would move up the appeal ladder to the federal level.
Do you have more information on this? It is an interesting avenue. I am not sure I agree, but having not thought about it in that way I don’t have any relevant research on it.
Thanks!
~D
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