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To: woodpusher
Assigning reasons or motives does not change the opinion.

I believe in objective truth. Decisions rendered for political expediency are not the same thing as objectively true.

Two dissenters tell me there is more to this story, and this with the entire pressure a king could bring to bear to make the decision come out his way.

Two justices saw fit to dissent in Roe v. Wade.

Good example. Roe v. Wade is an absolute garbage decision based on nothing more than emotions from a court that had been stacked with Liberal @$$holes who "interpreted" the law to mean whatever they wished it to mean. (Mostly thanks to the 14th amendment.)

That makes zero difference to the state of the law.

It makes zero difference to the truth. Rational people simply do not believe things because "experts" tell them such a thing is true. Rational men can weigh the evidence and decide for themselves if it is true, and in the case of Roe v Wade, it is clear that this decision is utter crap. The dissenters were correct and the majority was wrong.

None of this makes any difference to citizenship determinations in the United States.

I haven't got to the point of arguing about that yet. First we must understand the origins of how English common law came to be different from the Roman law that preceded it, and the Jus Sanguinus norms that existed on the Continent.

What made England go this way instead of the way the rest of the Continent went?

I have pointed out what I consider to be a very good motive for why it went this direction. There are other motives for England doing this, but I think Calvin's case is the smoking gun.

40 posted on 03/18/2022 7:42:07 AM PDT by DiogenesLamp ("of parents owing allegiance to no other sovereignty.")
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To: DiogenesLamp
Good example. Roe v. Wade is an absolute garbage decision based on nothing more than emotions from a court that had been stacked with Liberal @$$holes who "interpreted" the law to mean whatever they wished it to mean. (Mostly thanks to the 14th amendment.)

That makes zero difference to the state of the law.

Actually, it is your rant that makes no difference to the state of the law, and you know that as fact. The fact is that you can observe that in your state, as in every other state, abortion is legal. No state has the lawful power to enact a law outlawing abortion. That is the law. I disagree with Roe, as I do not see a right of privacy, broad enough to cover abortion, emanating from the penumbras. But I do not make believe that a Supreme Court opinion makes no difference to the state of the law. There is one opinion that defines the law and is not mine or yours, it is theirs.

None of this makes any difference to citizenship determinations in the United States.

I haven't got to the point of arguing about that yet. First we must understand the origins of how English common law came to be different from the Roman law that preceded it, and the Jus Sanguinus norms that existed on the Continent.

This is absolutely false. The only thing we must understand and acknowledge is the incontrovertible truth that the Constitution is the law of the land, and it supersedes and strikes down any law that conflicts with any of its provisions. If you can find anything which conflicts with any part of the 14th Amendment, that law is null and void in the United States.

All common law falls to written statute law.

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.

Everyone born in the United States, subject to its jurisdiction, is born a citizen of the United States. A natural born American citizen, to use the emphasis of John Jay, is a person who acquired American citizenship at birth.

https://dlc.library.columbia.edu/jay/ldpd:68356. Jay to Washington, 25 July 1787, handwritten.

The Constitution does not say a mumbling word about parents, or their citizenship. The child in the United States of two illegal aliens, both in a detention center awaiting deportation, is born a United States citizen. A child of foreign parentage born on U.S. soil, acquires U.S. citizenship at birth unless he or she is the child of a visiting accredited diplomat or of visiting royalty, and thereby enjoys immunity from United States laws. The prevailing precedent is United States v. Wong Kim Ark, 169 U.S. 649 (1898).

In Wong Kim Ark the dissenting opinion of Fuller C.J., joined by Harlan J., at 169 U.S. 706, said in reference to the majority opinion of the Court,

The English common-law rule, which it is insisted was in force after the Declaration of Independence, was that “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.” Cockb. Nat. 7.

That accurately describes the state of English law that was in effect in the colonies when the Declaration of Independence was issued.

Every one of the original thirteen states adopted so much of the English common law as was not inconsistent with the Constitution. They did so explicitly, either in their written state constitution, or in their written state statute law.

As was stated by the majority in the Opinion of the Court at 169 U.S. 702,

The fourteenth amendment of the constitution, in the declaration 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,” contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.

This thread article erroneously delves into McKay v. Campbell as something relevant.

In McKay v. Campbell, the U.S. District Court for the district of Oregon considered whether the plaintiff could be deemed a U.S. citizen, and should be allowed to vote. The defendants argued that McKay was British, since he was the child of a British subject, and had been born at a point when Britain and the United States had agreed-for the moment-to occupy the territory jointly. Judge Deady, evaluating the case, narrowed the issue to that of birthright citizenship under the Fourteenth Amendment, which he interpreted in terms of the common law; as he asserted, eliding jurisdiction and allegiance, “The case turns upon the single point – was the plaintiff born subject to the jurisdiction of the United States – under its allegiance? Citing Calvin’s Case, the Judge recalled Lord Coke’s statement that “To make a subject born, the parents must be under the actual obedience of the king, and the place of birth be within the king’s obedience, as well as within his dominion. According to Judge Deady’s reading of the Fourteenth Amendment, it is “nothing more than declaratory of the rule of the common law,” and, therefore, the citizen’s allegiance at birth must be evaluated. In McKay’s case, “The child, although born on soil … subsequently acknowledged to be the territory of the United States, was not at the time of its birth under the power or protection of the United States, and without these the mere place of birth cannot impose allegiance or confer citizenship.

In McKay, the person was born before the 14th Amendment existed, in a shared territory under a treaty agreement that British issue would be British by birth and American issue would be American by birth. The soil would be considered British for one and American for the other.

McKay v. Campbell, 16 Fed. Cas 161, 2 Sawr. 118, District Court, district of Oregon, 7 Nov. 1871.

The headnotes at 16 Fed. Cas. 161 provide a clear synopsis.

CITIZENSHIP — COMMON LAW - PERSONS BORN IN OREGON, BETWEEN 1818 AND 1846 — INDIAN TRIBES INDEPENDENT COMMUNITIES — XIV AMENDMENT — ISSUE OF A BRITISH SUBJECT AND CHINOOK WOMAN

1. By the common law a child born within the allegiance of the United States is born a subject thereof without reference to the political status or condition of its parents.

[Cited in Ex parte Chin King, 85 Fed. 855.]

[Cited in New Hartford v. Town of Canaan, 54 Conn. 41, 5 Atl. 362.]

2. By article 3 of the convention of October 20, 1818 (8 Stat. 249), between the United States and Great Britain. it was agreed that the Oregon territory should "be free and open to the vessels, citizens and subjects of the two powers;" which convention was continued in force until the convention of June 15, 1846 (9 Stat. 869); Held, that during the period of such joint occupation, the country, as to British subjects therein, was British soil, and subject to the jurisdiction of the king of Great Btitain, but as to citizens of the United States, it was American soil and subject to the jurisdiction of the United States; and that a child born in such territory in 1823 of British subjects, was born in the allegiance of the king of Great Britain, and not that of the United States.

[Cited in Town v. De Haven, Case No. 14,113.]

[Cited in State v. Boyd 31 Neb. 725, 48 N. W. 739, and 51 N. W. 002.]

3. The Indian tribes within the territory of the United States are independent political communities, and a child of a member thereof, though born within the limits of the United States, is not a citizen thereof, because not born subject to its jurisdiction.

[Cited in U. S. v. Osborn, 2 Fed. 60; Elk v. Wilkins, 112 U. S.109, 5 Sup. Ct. 49.]

4. The fourteenth article of the constitution of the United States, commonly called the fourteenth amendment, is only declaratory of the common law rule on the subject of citizenship by birth, and therefore does not include Indians or others not born subject to the jurisdiction of the United States.

5. In 1823, and prior thereto, the Chinook Indians were an independent political community, inhabiting the Oregon territory, at and near the mouth of the Columbia river; and in said year the plaintiff was born at Fort George (now Astoria) of a father who was an alien and a British subject, and a mother who was a Chinook Indian; Held. that the plaintiff is either to be deemed to follow the condition of his father, and considered a British subject, or that of his mother, and considered a Chinook Indian, but that in either case he was not born a citizen of the United States.

6. At an election held on June 6, 1870, at East Dalles precinct under the laws of Oregon, the plaintiff offered to vote and his right to do so being challenged, offered to take the prescribed oath as to his qunlifications as an elector, but the defendant then being one of the judges of election at said polls, refused to administer said oath to the plaintiff, as he was required to do by the law of the state on the ground that plaintiff was not a citizen of the United States, but a half breed Indian; Held, that whether such refusal was wrongful or not, under the state law, the plaintiff not being a citizen of the United States, is not within the purview or protection of article 15 of the constitution of the United States, or the act of congress, entitled "An act to enforce the rights of citizens of the United States to vote in the several states of the Union and for other purposes" (16 Stat. 740), and therefore cannot maintain an action against the defendant on account of such refusal, to recover the penalty given by section 2 of said act of congress.

McKay could be considered as a British citizen born on British soil, or as a member of an Indian tribe, in either case not subject to the jurisdiction of the United States. This strange case, relying upon the duality of soil in 1823 pursuant to a treaty regarding the territory of Oregon, is irrelevant to any current discussion of citizenship law in the United States.

McKay, 16 Fed. at 164, Opinion of the Court,

When, in 1818, the two governments entered into the treaty of "joint occupation," as it has been aptly called, they thereby agreed that this then unsettled and unknown country, might be occupied by the people of both nations—that it should "be free and open" "to the vessels, citizens, and subjects of the two powers"—without either of them losing their nationality, changing their allegiance, or passing beyond the jurisdiction and protection of their separate governments. As to the British subject and his children born here, the country was for the time being British soil, while to the American citizen and his offspring it was in the same sense American soil. Neither government was entitled to exercise any authority over the citizens or subjects of the other, or to assert the power and rights of a sovereign over them, or their effects, within this particular territory. If, prior to 1846, the plaintiff had died intestate and without heirs, leaving a large amount of personal property in the territory, there is no doubt but that the British crown would have claimed the escheat without a word of objection from the government of the United States.

When it is said that by the common law a person born of alien parents, and in the allegiance of the United States, is born a citizen thereof, it is necessarily understood that he is not only born on soil over which the United States has or claims jurisdiction, but that such jurisdiction for the time being is both actual and exclusive, so that such person is in fact born within the power, protection and obedience of the United States. Generally speaking, the various places in the world are claimed, or admitted for the time being, to be under the exclusive jurisdiction of some particular sovereign or government, so that a person born at anyone of them is without doubt born in the allegiance of such particular sovereign or government. But that is not this case—which in this respect is a singular one. Its parallel has not been found in the books. The country of the plaintiff's birth was, at the time thereof, jointly occupied by the citizens and subjects of two governments in pursuance of a treaty to that effect. Under the Circumstances, neither government can be considered as exercising general exclnsive jurisdiction over the country and its inhabitants. It seems to me, that the only practical and just solution of the problem, is to consider the country for the time being, only to have been in the exclusive jurisdiction of each government as to its own citizens or subjects; and this is the view which congress appears to have taken of the matter in 1846, when, in the preamble to the resolution of April 27, it deprecated "the evil consequences of the divided allegiance of its American and British population," and "the confusion and conflict of national jurisdiction" growing out of the continued joint occupation of the country.

McKay 16 Fed. at 165, Opinion of the Court

Articles 14 and 15 of the constitution, commonly called the fourteenth and fifteenth amendments, have been cited by counsel for plaintiff as bearing upon this question of the plaintiff's citizenship and consequent right to vote. The latter simply provides that "the right of citizens of the United States to vote shall not be denied or abridged, on account of race, color, or previous condition of servitude." But as to who are "citizens of the United States" this article is silent—it being understood that that matter had been regulated or defined by article 14, § 1, which enacts: "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." Eliminate the words having reference to naturalized citizens, and the clause reads: "All persons born in the United States, and subject to the jurisdiction thereof, are citizens," etc. This is nothing more than declaratory at the rule of the common law as above stated. To be a citizen of the United States by reason of his birth, a person must not only be born within its territorial limits, but he must also be born subject to its jurisdiction—that is, in its power and obedience.

Kamala Harris, born in California, and subject to its laws, is a citizen of the United States.

Congress cannot legislate the matter away. Any change will require another amendment. Perhaps the citizenship clause should be amended, but for now, it is what it is. The English common law rule was placed in the Constitution and deliberately placed beyond the authority of the Legislature.

It is the words that were ratified that are the law of the land. This is so whether thhey are a correct or incorrect interpretation of the common law rule. The words ratified are the law of the land, regardless of whether they comport with the alleged beliefs of one or more Framers, real or imaginary. The words are what was ratified.

It is fine to disagree with a law, or with a court opinion. That does change the law or the legal opinion. It is pointless to cite everything but U.S. law to claim what is the state of U.S. law.

42 posted on 03/18/2022 10:02:54 PM PDT by woodpusher
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