Well, I'm an attorney, and I've never heard of some proper noun, specific "Code of Statutory Construction". There are plenty of what normally are referred to as rules of construction, or principles of statutory construction, but I've never heard them referred to as a Code except when said "Code" is specifically enacted as part of legislation in a particular state. Most lawyers know that a Code refers to something formally enacted into law. Of course, that is an impossibility when we're talking about the Constitution, because the Constitution isn't a "statute", and its interpretation can't be governed by some subsequently-passed "Code". If someone is going to argue legal technicalities, they ought to get their terminology correct.
Second, I am familiar with a general rule of construction that corresponds to the "Code of Statutory Construction" the author claims to be citing. So in substance, he's at least right about the existence of such a principle of construction. That the specific controls the general is an accepted rule/principle.
But third, he is simply wrong to the extent he believes that rule compels the conclusion he offers. Either it's bad lawyering, or he's being disingenuous.
For the rule to apply, the second clause must be argued as changing the meaning of the first. If someone argues that Clause B changes the meaning of Clause A, then his argument that this cannot be the case is correct, because the specific governs the general. To the extent someone is arguing that, this point is correct.
The problem is that this ignores the most common argument --that the 14th doesn't change the original meaning of the NBC clause at all, but rather, is consistent with that original meaning. If you argue (as many do)that "natural-born citizen" was intended to draw a distinction between 1) people who were citizens at birth, and 2) people who were naturalized after birth, then the 14th Amendment didn't change the meaning of the NBC clause at all. Rather, it just changed the definition of who was a citizen at birth, but did not change at all the distinction between those who were citizens at birth, and those who were naturalized. The NBC still has its original meaning of barring naturalized citizens from the Presidency.
Now obviously, this put us right back to where we've always been in this dispute, which is whether the Framers were intended to incorporate De Vattel's definition, or the common-law English one, of citizenship. If the former, then the author is correct. If the latter, then he's not. And since people still disagree about this, this article doesn't really advance the ball at all. We're still left arguing over whether the De Vattel interpretation is correct, or not.
Wow, you really are an attorney.
All that obfuscation and hair-splitting under the claim of clarification, and then the final build up to two undefined positions with no specific contrast of substantive points.
Yep, you're not only an attorney, you're a well paid one.
Can you explain to me why my daughter cannot be President?
She was born in Canada, right across the border from our home. She was a “resident” of Canada fore the first 48 hours of her life. She has lived with us, who are both natural born USA citizens, for the rest of her childhood, and is now 39 years old.
But, she cannot be President, because she was born in Canada. Why does the law prevent her, but not Barry O, who doesn’t have two natural born USA citizens, and has not produced an undoctored birth certificate showing the place of his birth. (Which I suspect was right across the border, in Canada)
Inquiring minds want to know why the difference?
Well, I’m not an attorney and I saw the fault in his argument right away
http://www.freerepublic.com/focus/bloggers/2838849/posts?page=30#30
I believe that Donofrio is defining and explaining the concept for lay people. There is a great deal of disinformation out in the bloggosphere by Obots who deliberately attempt to confuse lay persons. Because we do not have the education in the law, this is relatively easy to do. Donofrio has given the layperson greater understanding of a concept important to understand in the debate as a whole.
Thanks for the cogent post! :)
08/07/92 STATE MINNESOTA v. ERIC JAMES DOKKEN
COURT OF APPEALS OF MINNESOTA
http://mn.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19920807_0005.MN.htm/qx
"Rubin v. The Islamic Republic of Iran", page 241
Yearbook of Cultural Property Law 2008
Sherry Hutt, David Tarler
http://books.google.com/books?id=_FPqDD7IyUoC
Statutory default rules: how to interpret unclear legislation
Einer Elhauge
Harvard University Press, Feb 28, 2008
Professor Michael Zander QC
The Law-Making Process, Cambridge University Press, 6th edn, 2004, pp. 213-214
http://www.francisbennion.com/2004/nfb/006.htm
Bruce,
I will take it one step further for you. SCOTUS in Wong Kim Ark rejected Vattel. So did the lower court.
The lower court said they might be willing to embrace Vattel (calling it Law of Nations) but that controlling authority indicated it was not possible.
They left it open for SCOTUS. SCOTUS REJECTED Vattel.
They Affirmed the lower court decision.
So ,at least for Wong Kim Ark, VATTEL REJECTED.
Ginsburg has already show her opinion in the oral Arguments in Nguyen. She thinks her grandson born in France is eligible to run for President.