Posted on 09/29/2012 12:31:26 PM PDT by Seizethecarp
How does calling legitimate questions about Constitutional eligibility to serve as POTUS “conspiracy theories” make Coulter comparable in any way to Donofrio’s or others’ efforts in that regard???
No X. Wong Kim was naturalized at birth. His citizenship was determined by law, not by nature. The decision was entirely based upon the 14th Amendment, which nowhere uses the term “natural born citizen.” Furthermore, its principal author, John Bingham, clearly enunciated the common-law definition which has always been understood, albeit using language to clarify the intent:
“... what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen….”
The notion “naturalized at birth” is not obvious, but made necessary by the construction. The only natural citizens are those born, initially, to those who fought for our nationhood - our independence of subjection to a monarchy and its King - and born on our soil. Afterwords they were those born to citizens.
A problem facing our framers was the defintion of who would be citizens. Every sovereign state among the nine approving the Constituiton had its own rules for who were citizens of their state. To unite they needed to protect those already citizens in their states. As United states citizens need the freedom to preserve their legal rights across state laines. The problem was properly "punted" to Congress by Article 1 Section 8, ordering Congress to create "an Uniform Rule for Naturalization." The Constitution only defined one class of citizen, knowing that a president with allegiance to the Crown, which discribed the majority of former colonists, would surely undermine the fragile constitutional republic. The issue was allegiance. The first presidents had to have been residents for 14 years, three years before the declaration, insuring that they weren't opportunists - they fought or lived through the Revolutionary War. Every signer of the Declaration signed his death warrant if the revolution failed.
Read the naturalization requirements at US.gov immigration and naturalization web site. It is, perhaps intentionally, a bit devious in not clarifying that the four steps that define a “born citizen” cannot affect who are natural citizens. Natural born citizens have allegiance at birth. Citizens, meaning naturalized citizens since Congress now defines who they are willing to naturalize, “naturally inherit the allegiances of their fathers”, the citation from Vattel’s Law of Nations used by Jefferson, who also made that version of Law of Nations compiled by Vattel our first law book.
Read the Declaration again. It was obviously a direct challenge to the Common-Law of England. Jefferson explained that it was necessary “ ...to assume among the Powers of the Earth, the separate and equal Stations to which the Laws of Nature and of Natures’s God entitle them...” That came from “The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns”, Vattel’s volume on natural law. Virtually every complaint listed in The Declaration is directly addressed and resolved in Law of Nations. Even judicial review, which was Incorporated later, was addressed in the work from 1758.
A child defined as a citizen at birth is not necessarily a natural born citizen. The difference is found in our appropriately termed “Oath of Allegiance”, the sworn commitment for naturalization:
“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the armed forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.”
That oath is why Obama is not a natural born citizen, even if he was born in Hawaii. His father had allegiance to another sovereignty. Those words comport with Bingham’s explanation of natural born citizens, and why they are not addressed by the 14th Amendment. We had no knowledge of the allegiance passed to those we enslaved. But having been born on our soil, having been brought here by force, they now had the choice to leave. Making them citizens was just and necessary. Congress had the authority to do that, from Article 1 Section 8. But Congress couldn't change Article II section 1, except by amendment, and they have never done so - for good reason. Their objective was to protect our citizens from someone whose allegiance was inconsistent with our freedoms. That is just what we got when we ignored Article II Section 1, allowing Obama to stay in the office for which he is not eligible.
I agree with that completely. But at the time of the signing of the Constitution, there were several common-law definitions of natural-born citizen.
Look, I thought the criticism of Coulter was over-the-top. Nothing more than that.
Geez, I've gotta learn to stop wading into these birther threads.
Why stop. We often learn something about our history; the contributors are often well informed and cogent, not to mention civilized (as differentiated from savages). On-the-other-hand having to think and respond carefully, and not get paid for it, is a real time sink.
As is all citizenship, if we understand "law" in all its forms, written and customary and moral.
The decision was entirely based upon the 14th Amendment, which nowhere uses the term “natural born citizen.” Furthermore, its principal author, John Bingham, clearly enunciated the common-law definition which has always been understood, albeit using language to clarify the intent ...
The decision was written by Horace Gray. He uses the phrase "natural born" citizen numerous times, and cites decisions and documents going back before the 14th Amendment to support his argument.
Justice Gray writes:
There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there as any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion.
Nor can it be doubted that it is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.
Wong Kim Ark was born to parents who weren't citizens, but the court, if I'm not mistaken, ruled that he was a citizen from birth. Because Wong Kim wasn't running for President there was now need to prove that he was or wasn't a natural born citizen or that natural born citizens were different from native born citizens from birth.
It's true that his birth here made him a US citizen in the court's eyes, but if we start distinguishing between hypothetical categories of people who became citizens at birth and those who were somehow citizens before they were born we'd go crazy. There is much controversy surrounding immigration and citizenship now, but hypothesizing different abstract categories of citizenship that didn't have much reality in our laws and our history doesn't look like the best way to rectify things.
The 14th Amendment begins: "All persons born or naturalized in the United States ..." This suggests that ideas of other kinds of citizenship other than birth citizenship or naturalized citizenship don't exist. To be pre-born or born a foreigner and naturalized by birth wasn't an option.
It continues " ... and subject to the jurisdiction thereof." In some ways this is similar to Bingham's "of parents not owing allegiance to any foreign sovereignty" and in some ways it isn't. Bingham had the opportunity to work "not owing allegiance" into the amendment. He didn't. There must be a reason Congress wrote what it did. We have to go on what Congress actually passed and what the states actually ratified and what the judges actually decided.
Briefly, natural law was not something Vattel invented. There were many natural law theorists and thinkers going back through the centuries who said different things. Not every reference to natural law is a support or vindication of Vattel's theories. Nor was the Declaration of Independence a repudiation of the common law or Blackstone or Blackstone's ideas about citizenship. We are still (unless you live in Louisiana or Puerto Rico or a few other island territories) largely a common law country.
I never implied that Coulter was “comparable” and I pointed out that having a declared non-citizen father was not “conspiracy.”
IMO, Coulter does betray knowledge of Donofrio’s finding that Arthur's father was not a US citizen at his birth. Coulter pointed out the father's Ireland birth, not Chester's suspected Canadian birth.
Coulter is clearly drawing an analogy between Barry's UK subject father and Chester's UK subject father, exactly as Donofrio was the first to do.
Any discussion of Wong Kim Ark and Justice Gray's views on natural born citizenship must be held in the context of of Gray's first citation in his decsion, which was to Minor v. Happersett. Not only did he cite Minor, he quoted Waite's definition of natural born citizen in its entirety. He did not contravene Minor v. Happerersett, nor did he try. The tortured analysis of his feints and dodges are a waste of time. He said what he said. Supreme Court, and probably all legal construction would have rendered the decision moot long ago if he had directly contradicted himself. Construction wouldn't admit a statement conflicting with his own citation and quotation. He didn't contradict his citation. In fact his citation implies that Justice Gray considered Minor v. Happersett to have established precedent on the definition, a definition which was essential to the decision regarding Virginia Minor's right as a citizen to vote.
Second, it is always useful to recall the context of Gray's decision; Gray was appointed by Chester Arthur. If someone had raised the issue, though there has been no discovery yet that anyone before 2008 ever did, the issue of Arthur's father's immigration status, Gray, known as a scholarly justice, knew he could be put in an awkward position. I don't see how he could have heard the case, since ineligibility would have rendered Gray's appointment moot. As a Justice he could have queried the State Department, and might have, having been a close observer of the Minor decision only ten years before.
Wong was ruled a citizen at birth because he was born here, using the terminology and language of the 14th Amendment. American Indians were born on our soil and not made citizens, because their allegiance was to their own governments. Anchor babies were born on our soil, and, at least no yet, aren't considered eligible to the presidency, though the acceptence of "I am a native-born citizen of the US" by Obama, would render anchor babies as eligible as Barack. Gray cited the Minor precedent requiring citizen parents and birth on our soil, confirming the natural law repeated by Chief Justice Marshall, and in thirty or so other Supreme Court cases.
If you think English common law is the foundation for our legal system there is little chance of changing that perception because it is so completely at odds with our Revolution, rejecting British law, and at odds with the hundreds of founders and framers who explain why that is not the case. If you really are curious, read James Wilson's Lectures on the Law, in which he spends chapter after chapter destroying the illusion that the the English even have a coherent legal system, or that they have a Constitution. Read Thomas Paine's “Rights of Man” in which he explains “The presidency in America (or, as it is sometimes called, the executive) is the only office from which a foreigner is excluded, and in England it is the only one to which he is admitted.”
If we respected English Common Law Obama could not have been a Senator, since only natural born subjects are eligible to be Members of Parliament. Obama, having been born to a British father, could become a Member of Parliament. In England, the monarch married someone from another nation to create interdependence among the involved monarchies, I presume. Anyone else whose father was an alien can never be an MP. We are a nation of immigrants. Naturalized citizens may hold any office but the presidency, very much unlike the British, who have already begun to cede their legal system to Sharia. Like Obama, Sharia is full of conflicts with the Constitution.
The best thing Obama has done for our republic is to inspire many of us who knew little about foundation to spend some time to learn. Time for you to learn, if you are not committed to spreading misinformation. Followers of Islam, a religion, a totalitarian legal system, economic system and military rolled into one are penetrating our republic. Citizens must know what our freedoms are to protect them. Obama, whether or not he is a believer, had his education funded by a Saudi Prince. His father held no allegiance to our nation and that violates our Constitution. To let just that provision slip away because it is seldom invoked (only seven times between 2002 and 2007, not including McCaskill's two Senate actions in 2008 to change the interpretation so that McCain can shield Obama from eligibility questions) is foolhardy. We have a provision for amending the Constitution, but thus far, no one has amended Article iI Section 1, certainly not Horace Gray. He repeated and cited Chief Justice Waite's definition from Minor v. Happersett.
I don't have time to read the whole book. But I did find this:
The common law, as now received in America, bears, in its principles, and in many of its more minute particulars, a stronger and a fairer resemblance to the common law as it was improved under the Saxon, than to that law, as it was disfigured under the Norman government. How much it was disfigured, and why we should not receive it in its disfigured state, will appear from the following very interesting part of Sir William Blackstone’s Commentaries.
This attitude was not uncommon in the early republic. England had gone astray -- had been corrupted -- but we Americans could return to the roots of our system. Such thinking was why Thomas Jefferson studied Anglo-Saxon. Most of the Founders or Framers studied law when it largely meant reading Blackstone. They had great respect for the common law and did not replace it with another system.
I also find Wilson saying:
Slavery, or an absolute and unlimited power in the master over the life and fortune of the slave, is unauthorized by the common law . . . . The reasons which we sometimes see assigned for the origin and the continuance of slavery appear, when examined to the bottom, to be built upon a false foundation. In the enjoyment of their persons and of their property, the common law protects all.
That doesn't sound like he despises the common law, does it?
If we respected English Common Law Obama could not have been a Senator, since only natural born subjects are eligible to be Members of Parliament.
So far as I could find out, by the law of 1701 only natural-born subjects could sit in Parliament. That must have been changed since then, since American-born Waldorf and Nancy Astor and "Chips" Channon sat in Parliament in the 20th century. But "natural born" in Britain was defined in Blackstone's terms, rather than in Vattel's.
Second, it is always useful to recall the context of Gray's decision; Gray was appointed by Chester Arthur. If someone had raised the issue, though there has been no discovery yet that anyone before 2008 ever did, the issue of Arthur's father's immigration status, Gray, known as a scholarly justice, knew he could be put in an awkward position. I don't see how he could have heard the case, since ineligibility would have rendered Gray's appointment moot.
Six justices agreed with Gray, and they weren't all appointed by Chester Arthur.
Things could have been different. A different interpretation might have prevailed. But it didn't.
You're right, of course. Sometimes, though, my old, war-torn asbestos suit just isn't up to the job.
I am no authority on the subject, but, according to what I've read, English common law at the time of the Constitution's signing held that the parents of a "natural born" citizen did not necessarily have to be citizens, themselves -- but that the father resided in the country and had expressed his loyalty to the King.
There is also the fact that President Andrew Jackson was born of Irish immigrants and President Thomas Jefferson's mother was English. If signers of the Constitution saw no Constitutional issue with their foreign-born parents, then, perhaps, the issue is not as cut-and-dried as many FReepers want it to be.
I realize there have been several Supreme Court cases since the 18th century on the subject, but I am interested in the original intent of the framers. Just as with abortion rights, I care less about Roe v. Wade than I do about the fact that legislating reproductive medical procedures is not granted to the Federal government.
Issues such as this one cannot simply be what we wish them to be. There is history beyond the most pleasing court decision one can lay his hands on.
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