Posted on 03/20/2016 11:46:56 AM PDT by conservativejoy
With all of the non-stop coverage of the 2016 presidential election, have you noticed as of late that Donald Trump has not said a peep about Ted Cruz not being eligible for the presidency? Earlier this year, Trump questioned whether Cruz was a natural born citizen because he was born in Calgary, Canada (to a U.S. citizen mother). Trump asserted this very question would be caught up in the court for years. Much editorial space was spent on major newspaper and TV networks discussing this issue. Many legal scholars even agreed that Trump may have a case against Cruz.
This weekend, it occurred to me, this issue has faded from the public eye. The major media outlets stopped talking about it (maybe because Trump has moved on to other things.) But, it remains an important and largely unresolved question. So, I decided to look through some of the filings in the lawsuits filed against Cruz, and discovered an opinion from a Pennsylvania Senior Judge Dan Pellegrini that gives an absolute smack down to all of these Ted Cruz birther claims. Judge Pellegrini in his 22 page memorandum opinion found that Ted Cruz was a natural born citizen thereby ruling that Cruz’s name can appear on the Republican primary ballot in Pennsylvania on April 26, 2016. Why this particular opinion piqued my interest is that it is the first I have seen anywhere that actually tackles the Constitutional questions surrounding Cruz’s eligibility. For example, cases in Utah and Florida, were recently dismissed on procedural technicalities (like standing). What is even more shocking - the opinion was issued last week - and I couldn't find any major network or newspaper covering it. (WSJ had a short blog post, and a few local newspapers covered it in PA). You would think that on the heels of such extensive coverage of the issue earlier this year, that the media would jump all over the first major opinion to addresses these important Constitutional questions that Trump brought up during the campaign. I guess, that's wishful thinking, but I will go through the opinion, anyway, as I think its illustrative of what will be found if/when this question is appealed to an even higher court, perhaps even the U.S. Supreme Court.
The heart of the question stems from Article II, Section I, of the U.S. Constitution which requires that a President be a "natural born" citizen. The challenge was filed by Carmon Elliot, a registered Republican in Pennsylvania. Elliot claimed Cruz should not be allowed to appear in the ballot because he is not a "natural born citizen."
Firstly, Cruz's attorneys argued that the Court should not address this issue at all because it is a "political question" that should not be addressed by the Judiciary. The judge found "no Constitutional provision places such power in Congress to determine Presidential eligibility." Bottom line (and this is important), the judge found that the courts can move forward with deciding the case.
So how did Judge Pellegrino of the Commonwealth Court of Pennsylvania arrive at his decision that Cruz was eligible?
The judge relies on several pieces on legal scholarship. First, a memo produced in 1968 by Charles Gordon, then the General Counsel of the United States Immigration and Naturalization Service, which says: "The Framers were well aware of the need to assure full citizenship rights to the children born to American citizens in foreign countries." He also points out a 2011 Congressional Research Service Memo entitled the "Qualification for President and the ‘Natural Born’ Citizenship Eligibility Requirement." The document concludes:
"The weight of legal and historical authority indicated that the term 'natural born' citizen would mean a person, who is entitled to U.S. citizenship 'by birth' or 'at birth' either by being born 'in' the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents."
Then the judge spends four pages quoting from the recent work of Paul Clement & Neal Katyal in the Harvard Law Review, in which the two Constitutional scholars (from different sides of the political aisle) conclude that "as Congress has recognized since the Founding, a person born abroad to a U.S. citizen parent is generally a U.S. citizen from birth with no need for naturalization. And the phrase 'natural born citizen' in the Constitution encompasses all such citizens from birth."
In his conclusion, the Judge states:
Having extensively reviewed all articles cited in the opinion, as well as many others, this Court holds, consistent with the common law precedent and statutory history, that a "natural born citizen" included any person who is a United States citizen from birth.Accordingly, because he was a citizen of the United States from birth, Ted Cruz is eligible to serve as President of the United States..
The judge's decision is ripe for a higher court review, but it is significant nonetheless. As election law expert Dan Tokaji points out in the Election Law Blog this case could ultimately be headed for the U.S. Supreme Court.
"A state court ruling would be helpful, but only a Supreme Court ruling could dispel the uncertainty surrounding its meaning. The good news is that review of a state court decision on Cruz's eligibility could be sought in the U.S. Supreme Court. The Supreme Court’s jurisdiction to review federal law questions is broader than that of lower federal courts," he wrote.
So perhaps, one thing Trump said is correct that this question could end being caught up in the courts for some time. The petitioner, Mr. Elliot, already said he plans to appeal the Judge’s decision.
States formerly were colonies, their colonial governments continued as state governments. The states joined together and formed a federal government. Unlike the governments of the states this federal government was not a continuation of an existing government, it was a new government founded on new principles.
The jurisidiction of federal courts is defined by the U.S. Const. art. VI, cl. 2. That written law does not grant to the federal judiciary the authority to incorporate other systems of laws of its own chosing, does not incorporate the common law of England, nor the law or constitution of the several states.
Jefferson letter to Edmund Randolph, August 18, 1799
Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force and cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of un-given powers have been in the detail. The bank law, the treaty doctrine, the sedition act, alien act, the undertaking to change the State laws of evidence in the State courts by certain parts of the stamp act, &c. &c. have been solitary, unconsequential, timid things, in comparison with the audacious, barefaced and sweeping pretension to a system of law for the United States, without the adoption of their legislature, and so infinitively beyond their power to adopt.
Madison letter to Jefferson, Jan 18, 1800
Madison states that admitting the common law as legal federal law of the United States “would confer on the judicial department a discretion little short of a legislative power” since federal courts would “decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States” and thus would “erect them [judges] into legislators”
Instructions To Virginia Senators, January 11, 1800.
The House proceeded to consider the instructions from the General Assembly of Virginia, to STEPHENS THOMPSON MASON and WILSON GARY NICHOLAS, senators from the state of Virginia, in the Congress of the United States. The instructions are as follows:
The General Assembly of the commonwealth of Virginia, though it entertains no doubt of your punctual performance of your duty, or of your faithful adherence to the great principles of constitutional law, and national policy, deems it incumbent on it to communicate its opinions, formed after the most mature deliberation, on certain subjects essentially connected, as it solemnly believes, with the dearest rights, and most important interests of the people.
...The General Assembly of Virginia would consider themselves unfaithful to the trust reposed in them, were they to remain silent, whilst a doctrine has been publicly advanced, novel in its principle and tremendous in its consequences: That the common law of England is in force under the government of the United States.
...Deeply impressed with these opinions, the general assembly of Virginia instruct the senators, and request the representatives from this State, in Congress, to use their best efforts —
To oppose the passing of any law, founded on, or recognising the, principle lately advanced, ‘that the common law of England is in force under the government of the United States,’ excepting from such opposition such particular parts of the common law as may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; .... and excepting, also, such other parts thereof as may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated.”
There you have it - “Our dearest rights and our most important interests are threatened by the idea that the common law of England is in force under the government of the United States.
This audacious, barefaced and sweeping pretension to a system of law for the United States, a system not adopted by the legislature, a system beyond judicial power to adopt, would make judges into legislators since they would decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States.”
What am I to take from this?
I NEVER denied that English common law had a place, even a central place, in the lives of the colonialists and in the fledgling states as well. After all, it had been the basis of their jurisprudence since the very beginning. You are mischaracterizing my position if you mean to imply that I do not or did not recognize this fact.
But, you are very, very wrong if you think that it was the Framers intention to adopt English Common law as the basis for the Constitutional framework of the new federal government. I could regale you with evidentiary quotations till late in the evening hours, but there is really no need for me to try to convince you. This is a friendly forum, despite your gratuitous insults.
“Have you ever gone down this road before?”
Yes, the usage of the words, citizen and citizenship, in the international context are not equivalents between England and Continental Europe in the 18th Century and earlier. The relationships require an in depth knowledge of the usage from the days of the Ancient Greek polis through the Roman Republic, Middle Ages, and into the Enlightenment.
That is what I have discovered. In the English vernacular of 1776, the word "Citizen" meant dweller in a City. The English usage of the word at that time did not encompass a member of a Nation-State.
It did however do this in Switzerland, which was a confederated Republic at the time.
The argument that I have recently decided is most compelling is this:
That the founders insisted on using the word "Citizen" means we got it's meaning from Vattel, and not England. Had they intended it's meaning to flow from English Common law, they would have kept the word "Subject."
The very word "Citizen" requires Vattel as the source, and not English common law, because the English didn't even use the word in that context.
That the founders insisted on using the word “Citizen” means we got it’s meaning from Vattel....”
No, because the direct American experience with the usage of citizenship to denote urban and/or national citizenship long predates the birth of Emer de Vattel. Vattel’s works only restated what the North American colonists had been personally acquainted with since the founding of the Jamestown and Plymouth Colonies through their contacts with other Europeans in Europe and in the Americas. In particular, one of the huge influences upon the Founders was the Dutch Republic and its former colony in North America, the 17th Century Colony of New Amsterdam. See for example:
New Amsterdam - Notable Citizens
https://www.geni.com/projects/New-Amsterdam-Notable-Citizens/5376
Your link makes no reference to the use of the word "Citizen" in New Amsterdam. The word I see being used back in the 1600s was "burgher".
Do you have any links to documents showing the Dutch were using the word "Citizen" rather than "Burgher?"
I would be very surprised to find the Dutch using the word "Citizen."
They were precise in their use of terms, and knew they were naturalized, collectively, by the formation of a new country. As naturalized persons, they could never be NBC, so they included a time-limited exception to the NBC rule.
The ancient origins of citizenship centered around being a member of the civil society of a city-state and later of an empire centered upon a founding city-state. Due to the historical origins of the Dutch nation, their citizenship rested upon a continuation of the emphasis upon the city-state as the basis for citizenship, which is still reflected in the citizenship of the Netherlands. This history of disparate social groups forming a confederated national government and identity was one of the great influences upon the Founders in addition to the Swiss Confederation. The North American British Colonies were also made up of many dissimilar societies speaking many languages and accustomed to many different legal systems, unlike England. The Dutch experience, New Netherlands and New Amsterdam, and the Swiss Confederation experience served as role models in part for the Congress to unify its own disparate cultures among the British North American Colonies and their colonial citziens. See:
History of Dutch nationality
https://en.wikipedia.org/wiki/History_of_Dutch_nationality
That is a non sequitur.
It most certainly is not. You can't just wish away reason. There are 2 types of citizenship: naturalized and natural born. Anyone with birthright citizenship does not require naturalization and is therefore by definition a natural born citizen.
Obviously there is no point in arguing with someone who thinks everyone else on the planet is wrong. The best way for you to win the argument is in a court of law. I beseech the birther community to either win in court or let it rest. Sadly, neither of those things will happen.
The word "Citizen" is from French, and it's usage as describing a member of a Nation-State began in the late 14th century. As near as I can tell, it was used in the Swiss Charte des prêtres of 1370.
" N'importe qui, étranger ou indigène, hôte ou citoyen d'une ville ou d'un pays, quel que soit son titre, doit pouvoir voyager dans tous nos districts et territoires, et aussi dans ceux des gens qui dépendent de nous, sans danger aucun pour sa personne et ses biens, et nul ne doit l'inquiéter, l'arrêter ou lui causer un dommage."
Which is more or less when the real Swiss confederacy began.
My point here is that the founder's usage of the word did not come from England. They used the word in the meaning used by the Swiss.
“I hate to be dense here, but I don’t grasp where any of that has anything to do with the word “Citizen.””
It has everything to do with the word, Citizen. To make a very long story very short, burgher, burgess, burg, buhr borough, township, city, city, citizenship, and an array of related word forms are closely related to each other in their definitions and usage, despite having etymology derived from Original Teutonic, Old English, Middle English, Old French, Late Latin, Latin, and translation from Greek. It would require a dissertation or a book to flesh out all of the details, which is far beyond the scope of a forum post. Suffice it to observe the varied word forms represent some common elements which were incorporated into the concepts of citizenship established in the United States of America in 1776 and afterwards.
“The word “Citizen” is from French, and it’s usage as describing a member of a Nation-State began in the late 14th century. As near as I can tell, it was used in the Swiss Charte des prêtres of 1370.”
The word, citizens, was already in use in England no later than 1314 with the spelling “citiseins” to describe members of a community. This was preceded by a variety of Anglo-French and Old French spellings: citesain, citesyn, etc. The Anglo-Norman possessions, Angevin Empire, Burgundy, and other French territories using a Northern French dialect used varied spellings going back into the Old French (9th-14th Centuries). Because most official documents were recorded in Late Latin until the emergence of the non-Latin languages in such documentation, the Late Latin and Latin variations of the word “civitas” were used to denote citizens and citizenship alongside the parallel Original Teutonic word, burger, borrowed into a Latin and late Latin form of the word. The origins of all of these related words and word forms tended to focus on membership in communities located in fortress towns, towns, townships, cities, and city states extending back to the city-state of Ancient Athens and earlier.
The word “citizen” was in use in the American colonies along with the establishment of the English and Swedish colonies. See for example the Swedish usage in 1626 and the English usage in 1682:
Charter of Privileges which Gustavus Adolphus Has Graciously Given by Letters Patent to the Newly Established Swedish South Company; June 14, 1626
http://avalon.law.yale.edu/17th_century/charter_014.asp
Duke of York’s Confirmation to the 24 Proprietors:
14th of March 1682
http://avalon.law.yale.edu/17th_century/nj09.asp
“My point here is that the founder’s usage of the word did not come from England. They used the word in the meaning used by the Swiss.”
The Founders made a revolutionary expansion of the class of citizens, which were quite novel in some respects. However, the more recent example of New Netherlands, New Amsterdam,, and the Dutch Republic were very influential to their thinking. many of the Founders and/or their associates had a Classical education in Latin, Greek, and/or French literature; so they were acquainted with the Greek and Roman concepts and experience with republicanism and democracy, in addition to the works of the Enlightenment scholars. I would have to argue the Founders variously took their inspiration from no one or small group of sources as their sources of inspiration and example. Vattel, on the other hand, did provide an inordinate number of citations in later U.S. case law, so it may be argued his works were of substantial influence in establishing new U.S. standards of citizenship. It may never be possible, however, to attribute the new U.S. standards of citizenship to only Vattel’s works.
http://avalon.law.yale.edu/17th_century/charter_014.asp
I looked at your link. You can't use an English translation to prove he used the word "Citizen." You have to use the original Swedish.
Duke of York’s Confirmation to the 24 Proprietors: 14th of March 1682
http://avalon.law.yale.edu/17th_century/nj09.asp
This is better, because at least the native language is English, but in looking through it, all examples of the usage of the word "citizen", refer to members of a city, not members of a nation. For example:
"Thomas Cooper, citizen and merchant taylor, of London;"
"William Gibson citizen and haberdasher, of London; "
"Clement Plumstead, citizen and draper, of London; "
I see no references to "Citizen of England". This is what I mean. The English usage of the word only refers to members of a City. The word is never used to refer to the members of a Nation, at least not in England.
Usage to refer to members of a Nation appear to be a Swiss thing.
The Founders made a revolutionary expansion of the class of citizens, which were quite novel in some respects.
For people descended from English. It is not novel at all for people descended from Switzerland, in fact it was the norm for them. That is my point.
Instead of using the obviously English word "Subject", they chose to use a "novel" interpretation of the word that was abnormal for English usage of the time, but was completely consistent with Swiss usage. They did so because their idea for using it was derived from it's usage by Vattel.
The word "Citizen" is proof that Vattel was the root of it, because the founder's usage of it was the same as Vattel's usage of it, and that usage was contrary to English language norms of the time period.
It may never be possible, however, to attribute the new U.S. standards of citizenship to only Vattel’s works.
One can only compile proof. I've looked through Shakespeare's complete works. The word only describes members of a City. I've looked through Blackstone's works. The word is used to describe members of a city. I've looked through the King James version of the Bible. Only once did it appear that the word was used outside of the context of members of a city.
The word does not appear in any English Law dictionary I have found that existed prior to 1776. (And I have found four of them.)
The evidence that our usage came from Vattel is the body of written usage of the word before and after Vattel wrote "Droit des Gens". There appears to be no English usage of the word in English law, and therefore it is nonsensical to argue that our meaning for the word derives from English law.
“I looked at your link. You can’t use an English translation to prove he used the word “Citizen.” You have to use the original Swedish.”
True, but you also did not use the original German, Italian, or Romansch used by the Helvetic Confederacy; example, Bürgergemeinde (citizens), bourgeoisie, Tagwen, Gemischte Gemeinde, and so forth which denote forms of Swiss municipal citizenship from which Cantonal and Confederacy citizenship are derived. The Swiss citizenship is not all that unlike that of the German Holy Roman Imperial scheme of citizenship of the period, the roman Republic and Roman Empire, and more with respect to the usage of a variety of municipal citizenship as the basis for determining cantonal, state, national, and/or imperial nationality or citizenship.
“I see no references to “Citizen of England”. This is what I mean. The English usage of the word only refers to members of a City. The word is never used to refer to the members of a Nation, at least not in England.
“Usage to refer to members of a Nation appear to be a Swiss thing.”
That is a misconception. Some members of the society of the United States of America today are not citizens and are not entitled to become citizens, because they are only nationals of the United States. All citizens of the United States of America are nationals of the United States of America, but some nationals of the United States of America are not citizens of the United States of America. The same was true of England and Great Britain, all citizens, burghers, burgesses, and citizens were subjects and/or nationals of the English/British sovereign; but not all such people could be citizens. The same was true in the Helvetic Confederacy. The term, citizen, cannot be used to represent all the forms of citizenship which ultimately were used to signify membership among the inhabitants of citizenship in the Helvetic Confederacy. Then and today we still have a distinction between subjects and nationals versus citizens, whether in the United States or in Switzerland.
No I didn't, and that's because I see no examples in those languages which use the word "citizen" or a close variation thereof.
Since my effort is to trace the word "citizen", only occurrences of that word are relevant.
The Swiss citizenship is not all that unlike that of the German Holy Roman Imperial scheme of citizenship of the period, the roman Republic and Roman Empire, and more with respect to the usage of a variety of municipal citizenship as the basis for determining cantonal, state, national, and/or imperial nationality or citizenship.
Did the Holy Roman Empire use the word "Citizen"? Remember, this is an etymology effort, not a conceptual effort.
That is a misconception. Some members of the society of the United States of America today are not citizens and are not entitled to become citizens, because they are only nationals of the United States. All citizens of the United States of America are nationals of the United States of America, but some nationals of the United States of America are not citizens of the United States of America.
Yes, yes, this is all true, but seemingly beside the point. The point I am getting at is how the word "Citizen" came to be used by a populace accustomed to the word "Subject." Why did we substitute the word "Citizen" for that of the more familiar word "Subject"?
Furthermore, in English language usage, the word "citizen" did not mean having a national character. It meant being a member of a city. It was only after we started using it to describe a national character that the word came to mean this in English.
The term, citizen, cannot be used to represent all the forms of citizenship which ultimately were used to signify membership among the inhabitants of citizenship in the Helvetic Confederacy.
My point is to show that our usage of the word is closer to the Swiss usage than it is to the normal English usage of the time period.
Only the Swiss used the word to refer to inhabitants of a Nation. The English did not use the word in that manner.
“Yes, yes, this is all true, but seemingly beside the point. The point I am getting at is how the word “Citizen” came to be used by a populace accustomed to the word “Subject.” Why did we substitute the word “Citizen” for that of the more familiar word “Subject”?”
I can’t see that we or the Swiss ever did so. Slaves were subjects. The Amerindian tribes were and areare subjects of the United States. Many of the inhabitants of Switzerland are subjects of the Swiss government/s.
US professor loses Swiss citizenship bid
http://www.bbc.com/news/blogs-news-from-elsewhere-29644880
Subjects existed in tandem with citizens in America in 1763, 1776, 183, 1789, 1790, 1866, 1898, 1920, and 2016. The fact that Thomas Jefferson and the other Founders drastically changed the proportions of those subjects versus citizens does not change the fact citizenship at the national level originated in the past and still originates today at the municipal level under a variety of word forms other than citizen. Swiss citizenship then and today existed/exists at three levels beginning with the municipal level, extends to the cantonal level, and extends again to the national level; yet still does not include those inhabitants who remain as subjects of Switzerland without Swiss citizenship. So, the word citizen still does not denote all of the inhabitants, nationals, or subjects of the United States or Switzerland.
“Why did we substitute the word “Citizen” for that of the more familiar word “Subject”?”
Because we switched our form of government from a feudal monarchy or a parliamentary monarchy in which a monarch was the sovereign reigning over the subjects, which included the freemen citizens, to a republic in which the sovereign was the body of freemen citizens of the municipalities, states, and North American confederation.
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