Posted on 03/09/2013 8:04:06 AM PST by Cold Case Posse Supporter
Now we are finally getting somewhere. Just like Obama is ineligible technically because his fathers British Nationality 'governed' his birth status in 1961, Ted Cruz is ineligible too. Fox News has confirmed it and rightly so. Sean Hannity made a huge blunder the other day and declared Ted Cruz a natural born citizen because he was born to a American mother in Canada. He was so wrong. Cruz is a 14th Amendment U.S. 'statutory' (not natural born) citizen which is something completely different than a Article 2 Section 1 Constitutional natural born Citizen which is explicitly designed only for the presidency by the framers.
Article II, Section 1, Clause 5:
“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”
Some have repeatedly attempted to derail eligibility concerns by citing the conflicted national affiliations of the earliest presidents, Jefferson for example. But this is a dead end for that line of argument, because the phrase above,
“or a Citizen of the United States, at the time of the Adoption of this Constitution,”
clearly sets forth an exception to the NBC requirement, out of necessity. Where would the first generation of Americans be able to get their elder statesmen if they excluded Jefferson et al. In later generations, the more stringent standard would apply, because time would have produced a new generation of leadership fully capable of meeting that higher standard.
In any discussion of law, you start with the text, not the history. History may be informative, and even necessary to consider. But statutory language gets first dibs at creating meaning. Here you have two classes of citizenship, clearly spelled out by the text. There is no reason for that distinction if folks like Jefferson and others could qualify under the NBC criteria. It is inescapable then that merely being a “Citizen of the United States,” per the grandfather clause, is not the same as being an NBC. From there you probably have to explore what that difference might be mostly in external sources, history, decisions of the court, etc. But it is a given that there is a difference (as well as a secondary inference that NBC was somehow more difficult to meet), and a full accounting of that difference and its inferences must be made to get to the truth.
Hence the “grandfather clause” problem. You simply haven’t knocked around enough of these eligibility discussions if you haven’t encountered it before. I’m not saying it’s decisive. Only that it cannot be ignored in the formulation of any solution that might be worthy of being considered complete.
**Uhh, lets pretend that some other country decides to usurp the citizenship of our country by suddenly declaring all US citizens to now be the citizens of country X. Then lets ask if any of those “former” US citizens can be qualified under the Constitution because they are no longer US citizens by virtue of country X laying claim to them**
Ah. I'm glad you recognize that your position leads to an absurdity.
Mr Rogers recognizes it, apparently. I think most intelligent people would recognize it.
And it's not because Mr Rogers and I are in some kind of secret collusion here. The ABSURDITY is an OBVIOUS CONSEQUENCE of your position.
If your position is CORRECT, then it means, as an OBVIOUS CONSEQUENCE, that legally speaking, the North Koreans can pass a law tomorrow making every person born in the United States a North Korean citizen. Therefore, we would be giving any country on earth the power to destroy or at least significantly cripple the United States, by making it impossible for us to elect a Constitutional President. At least, without passing a Constitutional Amendment so that we could do so.
Those are the LEGAL CONSEQUENCES of your position.
Or do you not think laws mean anything?
So, according to you...
Those HACK Framers have messed it up again.
Or are you trying to cover for the fact that you can produce NO official *LAW* recognizing dual citizenship as a legitimately legal US class of citizenship?
No. It's obvious that dual citizenship EXISTED, whether we passed a law "recognizing" it or not.
Heck, THREE OUT OF OUR FIRST FOUR PRESIDENTS were dual citizens... WHILE IN OFFICE.
Look. We defined whether a person was a citizen OF THE UNITED STATES, or not.
We made NO PROVISION for any change WHATSOEVER in a person's UNITED STATES citizenship status on the basis of whether or not some other country also recognized that person as a citizen.
So there's no clause invalidating a person's eligibility to be President on the basis of whether some other country recognized him as its citizen. It doesn't exist. DOES NOT EXIST.
So your claim that "a person born a dual citizen... is not eligible because such a class of citizenship did not exist in 1787" is simple and complete NONSENSE.
There are clear rules for defining who is and is not a US CITIZEN. There were and are NO RULES that say that citizenship is revoked, changed, or modified IN ANY WAY by the fact that another country recognizes him as a citizen, whether he accepts that citizenship or not.
It simply doesn't exist. And it's a damn good thing, too, because as we've seen, it leads directly to a complete legal absurdity.
Thanks!
I've read the same. Wish I had bookmarked it at the time.
Immigrants weren't 'immigrant's' until they registered to begin the naturalization process.
Everyone else was considered a denizen .
Denizens were under the jurisdiction of the States. It's HOW they kept what we now call 'illegals' out of the country.
From the 1st legal treaties written after Constitutional Ratification:
The common law has affixed such distinct and appropriate ideas to the terms denization, and naturalization, that they can not be confounded together, or mistaken for each other in any legal transaction whatever. They are so absolutely distinct in their natures, that in England the rights they convey, can not both be given by the same power; the king can make denizens, by his grant, or letters patent, but nothing but an act of parliament can make a naturalized subject. This was the legal state of this subject in Virginia, when the federal constitution was adopted; it declares that congress shall have power to establish an uniform rule of naturalization; throughout the United States; but it also further declares, that the powers not delegated by the constitution to the U. States, nor prohibited by it to the states, are reserved to the states, respectively or to the people. The power of naturalization, and not that of denization, being delegated to congress, and the power of denization not being prohibited to the states by the constitution, that power ought not to be considered as given to congress, but, on the contrary, as being reserved to the states.
St. George Tucker
The States had the FULL Constitutional authority to eject foreigners and aliens from their State and/or make restrictions on their residence until the federal government decided it could hopscotch past the 'parties to the compact' and make the 14th Amendment into some kind of grant of national jurisdiction.
Source, please.
But they wrote what they wrote. You don’t have the right to overturn them.
These Founding Fathers are people who read international works, and many of them traveled internationally. They knew people who came here not just from England but from other countries as well.
I don't think it escaped them that it was possible for a citizen born in one country to have "dual citizenship at birth" in another country. I don't think they were that FREAKING STUPID.
And yet, that seems to be ladysforest's argument. That the Framers of the Constitution were so STUPID that they couldn't even conceive of dual citizenship existing in fact, when they wrote the Constitution.
I guess they must have gotten smarter in a hurry, since 3 of our first 4 Presidents were dual citizens while serving in that office.
Then here is how I would answer your problem:
The grandfather clause is, I guess “or a Citizen of the United States, at the time of the Adoption of this Constitution”. That means that a NATURALIZED citizen, having probably fought for the new country during the Revolution, could become President.
There was an example, although I don’t remember the name. He came to the US in the 1760s, fought in the Revolution, and then was for a time Speaker of the House. As a naturalized citizen, he would ordinarily been prohibited from being in line to take the Presidency, but he was a citizen at the time the Constitution was adopted.
It also allowed anyone born outside the USA, who was a naturalized citizen in 1787, to become President. And again, I think there were two motivations for that. Politically, it made a lot of folks figure THEY could become President, and thus they voted for it. And second, most of those would have fought in the Revolution and thereby proven both their understanding of the new country, and their devotion to it. Those who helped deliver the new country shouldn’t have been barred from the Presidency due to being naturalized citizens, and they were not.
I see you choose not to answer the two simple yes or no questions I asked you.
Let’s try again:
1) Are you prepared to go with what the EVIDENCE says regarding where “offences against law of nations” came from in our Constitution?
2) Prior to my asking, had you ever carefully read the Opinion in US v. Wong Kim Ark, from start to finish?
These are not hard questions. Yes, or no.
I can deal with your other twistings after we’ve dealt with those.
No, it was not. 2 referenced other cases, 1 mentioned the Act of 1790, the one I posted earlier and 2 in the dissent.
If you believe there were more....
SHOW ME.
“And NBS/NBC was mentioned far more than 6 times in the WKA decision...SHOW ME.”
Well, if you insist...see how many times you can find the phrase “natural born subject” or “natural born citizen”:
I. In construing any act of legislation, whether a statute enacted by the legislature or a constitution established by the people as the supreme law of the land, regard is to be had not only to all parts of the act itself, and of any former act of the same lawmaking power of which the act in question is an amendment, but also to the condition and to the history [p654] of the law as previously existing, and in the light of which the new act must be read and interpreted.
The Constitution of the United States, as originally adopted, uses the words “citizen of the United States,” and “natural-born citizen of the United States.” By the original Constitution, every representative in Congress is required to have been “seven years a citizen of the United States,” and every Senator to have been “nine years a citizen of the United States.” and “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President.” The Fourteenth Article of Amendment, besides declaring that
all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,
also declares that
no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
And the Fifteenth Article of Amendment declares that
the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude.
The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, 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, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. [p655]
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. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.
In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said:
There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. 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.
124 U.S. 478.
II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. 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. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.
This fundamental principle, with these qualifications or [p656] explanations of it, was clearly, though quaintly, stated in the leading case, known as Calvin’s Case, or the Case of the Postnati, decided in 1608, after a hearing in the Exchequer Chamber before the Lord Chancellor and all the Judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin’s Case, 7 Rep. 1, 4b-6a, 18a, 18b; Ellesmere on Postnati, 62-64; S.C., 2 Howell’s State Trials, 559, 607, 613-617, 639, 640, 659, 679.
The English authorities ever since are to the like effect. Co.Lit. 8a, 128b, Lord Hale, in Hargrave’s Law Tracts, 210, an in 1 Hale P.C. 61, 62; 1 Bl.Com. 366, 369, 370, 374; 4 Bl.Com. 74, 92; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; Cockburn on Nationality, 7; Dicey Conflict of Laws, p. 173-177, 741.
In Udny v. Udny, (1869) L.R. 1 H.L. Sc. 441, the point decided was one of inheritance, depending upon the question whether the domicil of the father was in England or in Scotland, he being in either alternative a British subject. Lord Chancellor Hatherley said: “The question of naturalization and of allegiance is distinct from that of domicil.” P. 452. Lord Westbury, in the passage relied on by the counsel for the United States, began by saying:
The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status.
And then, while maintaining that the civil status is universally governed by the single principle of domicil, domicilium, the criterion established by international law for the purpose of determining civil status, and the basis on which
the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy, [p657] must depend,
he yet distinctly recognized that a man’s political status, his country, patria, and his “nationality, that is, natural allegiance,” “may depend on different laws in different countries.” Pp. 457, 460. He evidently used the word “citizen” not as equivalent to “subject,” but rather to “inhabitant,” and had no thought of impeaching the established rule that all persons born under British dominion are natural-born subjects.
Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said:
By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.
Cockburn on Nationality, 7.
Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics:
“British subject” means any person who owes permanent allegiance to the Crown. “Permanent” allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes “temporary” allegiance to the Crown. “Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.” “Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.
The exceptions afterwards mentioned by Mr. Dicey are only these two:
1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such [p658] person’s birth is in hostile occupation, is an alien.
2. Any person whose father (being an alien) is at the time of such person’s birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien.
And he adds:
The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person’s birth, it in theory, at least, depended not upon the locality of a man’s birth, but upon his being born within the jurisdiction and allegiance of the King of England, and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of, the Crown.
Dicey Conflict of Laws, pp. 173-177, 741.
It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
In the early case of The Charming Betsy, (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United States, Chief Justice Marshall saying:
Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of [p659] that character otherwise than in such manner as may be prescribed by law is a question which it is not necessary at present to decide.
2 Cranch 64, 119.
In Inglis v. Sailors’ Snug Harbor (1833), 3 Pet. 99, in which the plaintiff was born in the city of New York about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said:
It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects.
3 Pet. 120. Mr. Justice Johnson said: “He was entitled to inherit as a citizen born of the State of New York.” 3 Pet. 136. Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin’s Case, Blackstone’s Commentaries, and Doe v. Jones, above cited, and saying:
Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be [p660] subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.
3 Pet. 155. “The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.” 3 Pet. 156.
Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.
3 Pet. 164.
In Shanks v. Dupont, 3 Pet. 242, decided (as appears by the records of this court) on the same day as the last case, it was held that a woman born in South Carolina before the Declaration of Independence, married to an English officer in Charleston during its occupation by the British forces in the Revolutionary War, and accompanying her husband on his return to England, and there remaining until her death, was a British subject within the meaning of the Treaty of Peace of 1783, so that her title to land in South Carolina, by descent cast before that treaty, was protected thereby. It was of such a case that Mr. Justice Story, delivering the opinion of the court, said:
The incapacities of femes covert, provided by the common law, apply to their civil rights, and are for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations.
3 Pet. 248. This last sentence was relied on by the counsel for the United States as showing that the question whether a person is a citizen of a particular country is to be determined not by the law of that country, but by the principles of international law. But Mr. Justice Story certainly did not mean to suggest that, independently of treaty, there was any principle of international law which could defeat the operation of the established rule of citizenship by birth within the United States; for he referred (p. 245) to the contemporaneous opinions in Inglis v. Sailors’ Snug Harbor, [p661] above cited, in which this rule had been distinctly recognized, and in which he had said (p. 162) that “each government had a right to decide for itself who should be admitted or deemed citizens,” and, in his Treatise on the Conflict of Laws, published in 1834, he said that, in respect to residence in different countries or sovereignties, “there are certain principles which have been generally recognized by tribunals administering public law” [adding, in later editions “or the law of nations”] “as of unquestionable authority,” and stated, as the first of those principles, “Persons who are born in a country are generally deemed citizens and subjects of that country.” Story, Conflict of Laws, § 48.
The English statute of 11 & 12 Will. III (1700). c. 6, entitled
An act to enable His Majesty’s natural-born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens,
enacted that “all and every person or persons, being the King’s natural-born subject or subjects, within any of the King’s realms or dominions,” might and should thereafter lawfully inherit and make their titles by descent to any lands
from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through or under whom
title should be made or derived, had been or should be “born out of the King’s allegiance, and out of is Majesty’s realms and dominions,” as fully and effectually, as if such parents or ancestors “had been naturalized or natural-born subject or subjects within the King’s dominions.” 7 Statutes of the Realm, 90. It may be observed that, throughout that statute, persons born within the realm, although children of alien parents, were called “natural-born subjects.” As that statute included persons born “within any of the King’s realms or dominions,” it, of course, extended to the Colonies, and, not having been repealed in Maryland, was in force there. In McCreery v. Somerville, (1824) 9 Wheat. 354, which concerned the title to land in the State of Maryland, it was assumed that children born in that State of an alien who was still living, and who had not been naturalized, were “native-born citizens of the [p662] United States,” and, without such assumption, the case would not have presented the question decided by the court, which, as stated by Mr. Justice Story in delivering the opinion, was
whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship where none would exist by the common law if the ancestor were a natural-born subject.
9 Wheat. 356.
Again, in Levy v. McCartee (1832), 6 Pet. 102, 112, 113, 115, which concerned a descent cast since the American Revolution, in the State of New York, where the statute of 11 & 12 Will. III had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8a, that,
if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm,
and saying that such a child “was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354.”
In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said:
The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.
19 How. 576. And, to this extent, no different opinion was expressed or intimated by any of the other judges.
In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.
1 Abbott (U.S.) 28, 40, 41.
The Supreme Judicial Court of Massachusetts, speaking by Mr. Justice (afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was “to be governed altogether by the principles of the common law,” and that it was established, with few exceptions,
that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term “citizenship.”
Garder v. Ward (1805), 2 Mass. 244, note. And again:
The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born.
Kilham v. Ward (1806), 2 Mass. 236, 265. It may here be observed that, in a recent English case, Lord Coleridge expressed the opinion of the Queen’s Bench Division that the statutes of 4 Geo. II, (1731) c. 1, and 13 Geo. III (1773), c. 21, (hereinafter referred to) “clearly recognize that to the King in his politic, and not in his personal, capacity is the allegiance of his subjects due.” Isaacson v. Durant, 17 Q.B.D. 54, 65.
The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said:
Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign [p664] State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . The term “citizen,” as understood in our law, is precisely analogous to the term “subject” in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a “subject of the king” is now “a citizen of the State.”
State v. Manuel (1838), 4 Dev. & Bat. 20, 24-26.
That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.
The same doctrine was repeatedly affirmed in the executive departments, as, for instance, by Mr. Marcy, Secretary of State, in 1854, 2 Whart.Int.Dig. (2d ed.) p. 394; by Attorney General Black in 1859, 9 Opinions, 373, and by Attorney General Bates in 1862, 10 Opinions, 328, 382, 394, 396.
Chancellor Kent, in his Commentaries, speaking of the “general division of the inhabitants of every country under the comprehensive title of aliens and natives,” says:
Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent. . . . To create allegiance by birth, the party must be born not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a State, while [p665] abroad and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that, during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered.
2 Kent Com. (6th ed.) 39, 42. And he elsewhere says:
And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.
2 Kent Com. 258, note.
Mr. Binney, in the second edition of a paper on the Alienigenae of the United States, printed in pamphlet at Philadelphia, with a preface bearing his signature and the date of December 1, 1853, said:
The common law principle of allegiance was the law of all the States at the time of the Revolution and at the adoption of the Constitution, and, by that principle, the citizens o the United States are, with the exceptions before mentioned,
(namely, foreign-born children of citizens, under statutes to be presently referred to)
such only as are either born or made so, born within the limits and under the jurisdiction of the United States or naturalized by the authority of law, either in one of the States before the Constitution or, since that time, by virtue of an act of the Congress of the United States.
P. 20.
The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle. [p666]
P. 22, note. This paper, without Mr. Binney’s name and with the note in a less complete form and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Amer.Law Reg.193, 203, 204.
**Uhh, lets pretend that some other country decides to usurp the citizenship of our country by suddenly declaring all US citizens to now be the citizens of country X. Then lets ask if any of those “former” US citizens can be qualified under the Constitution because they are no longer US citizens by virtue of country X laying claim to them**
Ah. I’m glad you recognize that your position leads to an absurdity. “
That was YOUR absurdity. You want to play the lets pretend game along with Rodgers. I was pointing out that it has no place in this discussion.
You can’t help but get flustered and begin insults. It’s because you cannot produce any sources for the claims you make. I keep trying to steer you back, and you go all rant on topics you don’t seem to have a meaningful grasp of.
Like saying, “No. It’s obvious that dual citizenship EXISTED, whether we passed a law “recognizing” it or not. “
The point was that it is not OFFICIALLY recognized by any US *LAW* and never has been. Simple.
It follows that if it was not an officially sanctioned type of citizenship, it would not have been addressed in 1787 at the time the Article ll restrictions of eligibility were being decided. Simple.
And since it was not a legally recognized type of citizenship then or now, it stands to reason that it would disqualify a person from meeting any other type of standard citizenship which was ( in 1787) and is still legally recognized to this day.
A natural born citizen has a legal status, a naturalized citizen has a legal status, a 14th amendment citizen has legal status, but strictly speaking dual citizens do not in the same sense. Our own government admits to that, and says while it’s not officially recognized it is tolerated.
I DO NOT have to justify my opinions any further to you, as I have already provided sources to substantiate my position.
Everything everyone has provided as evidence has been conveniently ignored BY YOU
Your behavior has been arrogant and belittling, you have substantiated NOTHING, and added nothing positive whatsoever to the conversation.
Yet you consistently make childish demands of people that they ‘agree’ to something based on your conditions and on your opinion that what you have to offer is of any value at all.
You have already been asked once if you think we’re all stupid…well, if you think we'll fall for THAT one, it's obvious that you do.
-----
I'd like to rephrase my earlier statement to you -
Go play your stupid little ego-stroking games by yourself.
As such, we voters could kick back and enjoy our right to the covenant of warranty and quiet enjoyment of knowing that person is a citizen of the highest quality.
And, that we voters will not be disturbed at any time in the future because s/he has a defective title and must defend the title conveyed to us against the claims and demands of nations and persons whomsoever.
There is a specific tie of citizen parentage and place of birth in Vattel’s references which were very much known to the Founders. However the knot or blank so to speak in the debate about NBC as to a Constitutional requirement is that there is no specific wording that incorporates Vattel’s words exactly or some other corresponding expression into the requirement for POTUSA. My take is that with the records of deliberation of the Congress and the fact that Articles I and II address two different categories of citizen, the Founders intentionally wanted POTUSA to be a special kind of citizen. At the time their actions were in consonance with their words, I believe they thought so. I find it very easy to accept such even though my only brother who died on Okinawa in WWII and myself who also served in the Pacific would not qualify for POTUSA because of immigrant parents not being naturalized at our birth.
The point of any grandfather clause is the sunset effect. Once all who lived at the time the Constitution was adopted died off, the only remaining criteria would be NBC status. So I am not sure how to read your response. The clause creates two distinct categories of qualified individuals, one of which would expire over time (”US Citizen at a specific time”), the other remaining for perpetuity (NBC). It does not specify naturalized versus “born here,” but creates this temporary transitional category for all who are not NBC but are still a citizen by whatever other means then allowed, whether by naturalization or by birth. Again, that second category is gone now. It cannot be used to directly define modern eligibility. It can be used to explain many of the early exceptions to NBC qualification, such as Jefferson. Hence my uncertainty in evaluating your response.
Ah, your bizarre circular argument again.
I suppose that the Founders understood that amendments could be made at any time in the future to include whatever the citizens felt was needed or warranted.
But since dual citizenship is still not an officially recognized/legal type of citizenship it might be pretty tough to have Article ll amended to include this.
Why don’t you petition for this and let us know how that works out. Seven or eight attempts have been made by our elected reps. to amend Article ll and no attempt has yet been successful. You should read of the attempt that Barney Frank made, it’s good stuff. Lots of arrogant posturing about “fairness”.
On the contrary, I asked you what the heck you're talking about, and you haven't answered. I simply have no idea what you're referring to when you say "the grandfather clause problem." I have asked you to define it for me, but you won't. Then you accuse me of having "ignored" it.
And I do not limit the evidence collecting to the founders.
Neither have I.
DL makes the point, which you completely circumvented, that there were various opinions on the matter.
Where? Give me one opinion on the opposite side, dating from before 1840, as clearly worded as Rawle's.
You claim these opinions exist. All right, let's hear them. List them.
It does not matter to your argument that Rawle was a legal expert. He was just one of many, and many of those had various and conflicting opinions, else you would not even have your quote farm for statements apparently dismissive of parentage.
List them.
I can think of ONE such opinion in early America, and it was voted down 36 to 1.
You say the birthers have no evidence. But this is not true. What is true is that you have in one way or another dismissed that evidence and now hope that others, like myself, who are trying to give the question a fair hearing, either do not know of the conflicting evidence, or can read your mind and just innately know, as you seem to, that it doesn’t support the birther case, or else just meekly accept your “authoritative” assertion that we are all idiots. That simply isn’t good style in legal analysis. You could never win in a typical appellate court with an approach like that.
If something is a misrepresentation of fact, does that count as evidence in favor of a proposition? If something is irrelevant, does that count as evidence? If someone's words have been twisted to what they did not mean, does that count as evidence? If an opinion is expressed which was weighed and voted down 36 to 1 by a person's contemporaries, does that count as evidence? If there is no documentable link between A and B, yet someone asserts that there is a link, does that count as evidence?
Because that is ALL that birthers have.
And I know that you undoubtedly haven't read as much on the subject as I have. I've read a lot now. But you should start to pick up on the fact that birthers have no case.
Let's go back to post #695, because I'm not sure you read it. Maybe you should go back and read the entire thing. Then I have a question for you, since you seem to have some legal background.
Let's say you have a witness, in a case. We'll call him "Fred."
And you put Fred on the witness stand. And he sit up there, and he says some things. He was in Charleston on the night of the 27th. He was sitting in a restaurant, and he overheard Mr. Smith plotting to overthrow the government. No, he has absolutely no prior knowledge or relationship to Mr. Smith, and no motive for accusing him of anything. Yes, he's aware that the crime is punishable by 35 years in jail.
So then the defense lawyer comes in. And he brings a statement from Fred's wife, that she and Fred were out of town, in vacation in Las Vegas the entire week of the 27th. He produces a videotape from a casino that very clearly shows Fred, sitting in Las Vegas on the night of the 27th, playing roulette.
So the claim he was in Charleston that week is false.
So then he produces a second videotape, taken in New York, where Mr. Smith was presenting at a conference on the evening of the 27th.
So the claim that Smith was in Charleston on that night is false.
So then he produces a third videotape, which happened to be caught accidentally at a Charleston restaurant earlier in the month. And in that videotape, Fred (and it's clear that it's him) is caught making out with Smith's wife.
So the claim that he has no motive for accusing Smith of anything is obviously false.
Let me ask you: What is the credibility of Fred and his accusations at that point? Now that he has made 3 false claims in a row?
And yet I pick 5 RANDOM claims made by Mr. Birther, and I show that EVERY SINGLE ONE OF THEM, IN A ROW, IS COMPLETE NONSENSE.
And you want to keep Mr. Birther on the stand. Why is that?
Perhaps you can explain to me exactly why that is? Why, after having seen that 5 claims in a row from Mr. Birther are complete bull****, picked at random from among what I assume would be some of his "best" claims, why do you still try to make the case that Mr. Birther has any "evidence" at all?
As for “absolutely false,” or even “absolutely true,” that is nonsense. We are not talking about divine law, but human law. Men err.
I said that the birther claim that a person born on US soil must have two citizen parent is ABSOLUTELY FALSE, and I stand by that claim. I have done enough reading and analysis to know that it's true.
Let's put it this way: I can claim that when the Constitution says a person must have "attained to the Age of thirty-five Years," "attained to" is specific wording that means after reaching the age of majority, that is, 21. So I can claim (and I might even be able to find some foreign author to base the claim on, and say the Founding Fathers absolutely loved him and used him for the Presidential eligibility clause). So therefore, Presidential candidates REALLY have to be at least 56 years old, not 35.
Would such a claim on my part be "sort of true?" No. It would be FALSE. It would be ABSOLUTELY FALSE.
And that is the status of the two-citizen-parent claim. Just like the 56-years claim, it is ABSOLUTELY FALSE.
There is no credible evidence to support it, and tons of evidence against it. So yes, it is ABSOLUTELY FALSE.
The grandfather clause would not have been necessary if that were the case.
Do you actually know WHY the grandfather clause was put in the Constitution?
So I think our conversation is at an end. My time is precious, and no one is paying me to write the definitive brief for this problem. I leave it to you and other dedicated volunteers and professionals. I do not believe Obama will leave office over a constitutional violation, real or imagined, of any sort. We are past that. His term will expire and he will either leave or find a pretext for remaining in power. My focus right now is gun rights.
Sir, I salute you and wish you the greatest of success in your struggle on behalf of the Second Amendment. That is a worthy battle to fight.
So if birtherism is where you want to work, go for it. Not for me. But lose the paranoid ad hominem shtick. It’ll never sell in Peoria. Or even Springfield. Just sayin
Here is what I believe.
The arguments have all been made. Nothing that you have presented, or any other birther argument that I have seen here, is new. And every single one of those arguments, which I have all seen before, is rubbish.
You might think that I'm exaggerating. But you yourself put 5 arguments before me, and I promptly demonstrated that each and every one of them was rubbish. So there's a sample for you.
Since all the arguments have been made, and they are all nonsense, it is time for those who respect the Constitution as it was written, not as birthers wish it was written, to stand up and say: Enough is enough. Please stop twisting the Constitution. Leave it alone.
If that comes across to you as ad hominem, I'm sorry. Again, the fact that 5 birther arguments chosen at random, were all promptly shown to be hogwash, should be a clue that it is not.
It has been good talking with you. And I wish you success at your efforts to defend the Second Amendment.
I agree with you.
The closest wording that I can find is in the Preamble, which says that the Constitution was "ordained and established" to "secure the Blessings of liberty to ourselves and our Posterity." "Ourselves" are clearly "We the People." Our "posterity" is our children, our children's children, and so forth.
The Framers meant to seculre liberty to the citizens of America and their citizen children. The way to secure liberty is by restricting the highest office of the land to the tightest of qualifications. To me, that meant "our Posterity," as laid out in the Preamble, or the citizne children of citizen parents. Even if "ourselves" aren't natural born, our "posterity" are.
-PJ
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