Posted on 10/13/2010 3:04:13 PM PDT by BuckeyeTexan
On consideration of the Petition for Extraordinary Relief in the Nature of a Writ of Mandamus and Application for a Stay of Proceedings, the petition is DENIED.
(Excerpt) Read more at caaflog.com ...
ONCE AGAIN YOU(MR ROGERS) EDITS & PARSES MY POSTS AS WELL KENT'S QUOTES FROM THEIR ORIGINAL FORM IN ORDER TO OBSFUCATE THE THE TRUTH.
...ambitious foreigners cannot ; intrigue for the office, and the qualifications of birth cuts off all those inducements from abroad to corruption, negotiation and war, which have frequently and fatally harassed the elective monarchies of Germany and Poland, as well as the Pontificate at Rome… (James Kent, Commentaries on American Law, Part II: Of the Government and the Jurisprudence of the United States, 1826)
So Mr Rogers, what part of this:
...as distinguished from the absolute rights of individuals, of which we have already treated. Most of these relations are derived from the law of nature, and they are familiar to the institutions of every country, and consist of husband and wife, parent and child, guardian and ward, and master and servant. To these may be added,...a still more general division of the inhabitants of every country, under the comprehensive title of aliens and natives
Do you not understand?... Kent clearly states here that natural does not equate to native as birth was not a requirement to being a native at the signing of the constitution:
(1.) Natives . . . If they were resident citizens at the time of the declaration of independence, though born elsewhere, and deliberately yielded to it an express or implied sanction, they became parties to it, and are to be considered as natives; their social tie being coeval with the existence of the nation.
So, when defining original intent, birth was NOT a requisite for being classified as a Native.
As Morse stated in 1904:
“the framers generally used precise language; and the etymology actually employed makes the meaning definite...If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, “no person, except a native-born citizen”;”
So while certain individuals MAY have used native in place of natural, one must look to which definition of native they were using, they are not interchangeable and are very distinct as Kent has shown. The Indians were all native-born, yet they were not all citizens. Get the Picture?
“Kent clearly states here that natural does not equate to native as birth was not a requirement to being a native at the signing of the constitution:”
Please try to read some history, or even the rest of the Constitution. The ‘grandfather clause’ allowed anyone who was a subject of the American colonies, and who had helped the rebellion, to automatically become a ‘natural born citizen’, because they had given birth to the nation, instead of the nation giving birth to them. That only applied to those alive at the signing of the Constitution.
“So, when defining original intent, birth was NOT a requisite for being classified as a Native.”
Again, incorrect. Those who helped give birth to the nation were grandfathered in. Those who followed, not having participated in the nation’s birth, would need to be born in the nation. And while they were not natives, they were considered as such - per Kent’s words.
“The Indians were all native-born, yet they were not all citizens.”
The Indians were considered separate nations leaving in the US per treaties with them. And at the time the Constitution was written, they held the vast majority of the land...
Our recent exchanges have been very instructive and I believe I now understand your current thinking. In this regard, there is little reason for me to continue pressing you. Thanks, and best of luck in your quest.
Talk about stupid, you can't even understand simple language!
Kent said & I quote:
“(1.) Natives . . . If they were resident citizens at the time of the declaration of independence, though born elsewhere, and deliberately yielded to it an express or implied sanction, they became parties to it, and are to be considered as natives; their social tie being coeval with the existence of the nation.”
Those “resident citizens” who took part, deliberately yielded an to the revolution, NOT those whom came afterward for those were the 1st immigrants to the US. DUH!
You had better go back & read history as some natives were part of the revolution & became citizens. At the time of the revolution, the states determined citizenship, NOT the Congress of the confederate states. Another DUH!
James Kent:
When the United States ceased to be a part of the British empire, and assumed the character of an independent nation, they became subject to that system of rules which reason, morality, and custom had established among the civilized nations of Europe, as their public law. During the war of the American revolution, Congress claimed cognizance of all matters arising upon the law of nations, and they professed obedience to that law, “ according to the general usages of Europe.”* By this law we are to understand that code of public instruction, which defines the rights and prescribes the duties of nations, in their intercourse with each other. The faithful observance of this law is essential to national character, and to the happiness of mankind.
a Ordinance of the 4th December, 1781, relative to maritime captures. Journals of Congress, vol. vii. 185.
b L’Etprit des Loir., b. 1 c 8.
The most useful and practical part of the law of nations is, no doubt, instituted or positive law, founded on usage, consent, and agreement. But it would be improper to separate this law entirely from natural jurisprudence, and not to consider it as deriving much of its force, and dignity, and sanction, from the same principles of right reason, and the same view of the nature and constitution of man, from which the science of morality is deduced. There is a natural and a positive law of nations. By the former, every state, in its relations with other states, is bound to conduct itself with justice, good faith, and benevolence; and this application of the law of nature has been called by Vattel, the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others, the internal law of nations, because it is obligatory upon them in point of conscience.
s. Vattel, Prelim sec. 7
Kent only makes mention of Blackstone's English common law in passing 7 times in the entire 1st Vol of his commentaries when writing of our founding and what the founders used as a base for American laws aka the Constitution. However, Kent cites & quotes Vattel on page after page, on every topic including “natural” jurisprudence as shown above; which by the way is only 2 paragraphs from the 1st 2 pages of Kent's Commentary Vol 1. Kent's Commentaries on American law Vol 1 lays the foundation of American Law & it didn't come from English common law, but form the only laws for a moral & religious society which is that of the law of nations.
According to the 1795 edition of the Law of Nations Obama is not a natural born citizen.
The 1805 edition of the Law of Nations is the same..Obama is not a natural born citizen.
The 1758, 1759, 1760, 1797, 1854, 1856, 1886, 1883...editions of Vattel’s Law of Nations show Obama is an illegal President.
One example the US Supreme Court used Vattel’s Law of Nations. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?linkurl=%3C%linkurl%%3E&graphurl=%3C%graphurl%%3E&friend=%3C%20riend%%3E&court=us&vol=120&invol=479
James Kent:
When the United States ceased to be a part of the British empire, and assumed the character of an independent nation, they became subject to that system of rules which reason, morality, and custom had established among the civilized nations of Europe, as their public law. During the war of the American revolution, Congress claimed cognizance of all matters arising upon the law of nations, and they professed obedience to that law, “ according to the general usages of Europe.”* By this law we are to understand that code of public instruction, which defines the rights and prescribes the duties of nations, in their intercourse with each other. The faithful observance of this law is essential to national character, and to the happiness of mankind.
These are NOT my words, these are Kent's words, the Law of Nations is essential to national character aka nationality aka citizenship. Or as Kent put it here as well as is wriiten in the Ceclaration of Independence, the happiness of mankind.
This argument, while interesting (excepting the personal attacks) is also nothing but quaint with respect to the Constitution as amended. The language of the 14th Amendment established two classes of U.S. citizens, those born within its limits and those naturalized. The meaning of the former in respect to those eligible for the Office of President has never been tested in the courts, but is widely assumed by most jurists to mean than anyone born on U.S. soil is eligible to be President. Obama might make a good test case on this question except that he was most likely born in the U.S. Until such a case is brought before the courts, your opinion is just as good as the next man’s.
Ms Rogers you had your head handed to you again.
The adoption of the 14th Amendment is naturalization. You cannot create instant natural born citizen from people who were not US citizens before the Act.
I'm no Constitutional scholar, so I will defer to those who are, but I'm thinking that former slaves and American Indians made citizens by the 14th Amendment were also made eligible for the Office of President. Once you amend the Constitution, its original language must be read in the context of the amendment, its no longer the original document. I believe that this was what the founders intended.
Once you amend the Constitution, its original language must be read in the context of the amendment, its no longer the original document. I believe that this was what the founders intended.
All you have to do is look at the SCOTUS case of 1952 Kawikita v. United States that says otherwise. Mario Appuzo has added that case to his appeal to the US Supreme Court.
Sorry I confused you. I wrote, “Those who helped give birth to the nation were grandfathered in. Those who followed, not having participated in the nation’s birth, would need to be born in the nation. And while they were not natives, they were considered as such - per Kent’s words.”
The first and third sentences are connected. I thought it obvious, since that was the point of contention, and that it would be understood that the second sentence was an aside.
If it helps you to understand, delete the second sentence and you have “”Those who helped give birth to the nation were grandfathered in...And while they were not natives, they were considered as such - per Kent’s words.”
Yes, I was specifically talking about the Grandfather clause. And since Kent was as well, and I was using his words, I thought that obvious.
Yes, Kent and others DID use Vattel - but NOT for citizenship discussions. Kent wrote, and the Supreme Court cited in WKA:
“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.”
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html
You will note that is not in agreement with Vattel, but neither the Supreme Court nor Kent believed Vattel was God. And in matters of citizenship, they followed the Constitution, not Vattel.
“According to the 1795 edition of the Law of Nations Obama is not a natural born citizen.”
Correct. However, IAW the Constitution written in 1787, he IS a NBC. We use the Constitution, not Vattel.
When pressed about whether Indians living on reservations would be covered by the clause since they were “most clearly subject to our jurisdiction, both civil and military,” for example, Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, responded that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction, “[n]ot owing allegiance to anybody else.”[4] And Senator Jacob Howard, who introduced the language of the jurisdiction clause on the floor of the Senate, contended that it should be construed to mean “a full and complete jurisdiction,” “the same jurisdiction in extent and quality as applies to every citizen of the United States now”[5] (i.e., under the 1866 Act). That meant that the children of Indians who still “belong[ed] to a tribal relation” and hence owed allegiance to another sovereign (however dependent the sovereign was) would not qualify for citizenship under the clause. Because of this interpretative gloss, provided by the authors of the provision, an amendment offered by Senator James Doolittle of Wisconsin explicitly to exclude “Indians not taxed,” as the 1866 Act had done, was rejected as redundant.[6]
The interpretative gloss offered by Senators Trumbull and Howard was also accepted by the Supreme Court-by both the majority and the dissenting justices-in The Slaughter-House Cases.[7] The majority in that case correctly noted that the “main purpose” of the clause “was to establish the citizenship of the negro” and that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”[8] Justice Steven Field, joined by Chief Justice Chase and Justices Swayne and Bradley in dissent from the principal holding of the case, likewise acknowledged that the clause was designed to remove any doubts about the constitutionality of the 1866 Civil Rights Act, which provided that all persons born in the United States were as a result citizens both of the United States and of the state in which they resided, provided they were not at the time subjects of any foreign power.[9]
Although the statement by the majority in Slaughter-House was dicta, the position regarding the “subject to the jurisdiction” language advanced there was subsequently adopted as holding by the Supreme Court in Elk v. Wilkins.[10] John Elk was born on an Indian reservation and subsequently moved to non-reservation U.S. territory, renounced his former tribal allegiance, and claimed U.S. citizenship by virtue of the Citizenship Clause. This Court held that the claimant was not “subject to the jurisdiction” of the United States at birth, which required that he be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”[11] Elk did not meet the jurisdictional test because, as a member of an Indian tribe at his birth, he “owed immediate allegiance to” his tribe and not to the United States.
Indeed, if anything, American Indians, as members of tribes that were themselves dependent upon the United States (and hence themselves subject to its jurisdiction), had a stronger claim to citizenship under the Fourteenth Amendment merely by virtue of their birth within the territorial jurisdiction of the United States than did children of foreign nationals.
Gray did a complete 180 from the deciding opinion HE(GRAY) wrote in Elk to that of WKA. He completely ignored the congressional records of the founders of the 14th that he used in Elk. WKA ushered in the dumbing down of US citizenship & sovereignty for the progressive movement by the biggest usurpation of the Constitution in the 19th century.
Feudalism doesn't exist in the United States. There is no King and there are no obedient King Subjects, and there is no empire for a King to rule over.
I do think that you are right in respect to American Indians who proclaimed primary allegiance to their respective tribes. Certainly, the author of the citizenship clause made that argument and was supported by several other senators and was later upheld by the Supreme Court. That argument no longer holds, any American Indian born in this country is a citizen by birth.
Interestingly, the argument against granting citizenship to American Indians under the 14th Amendment, acknowledged that all others excepting children of diplomats were citizens by virtue of their birth.
Before we had Free Republic, we only had the courts to decide such matters.
“These are NOT my words, these are Kent’s words, the Law of Nations is essential to national character aka nationality aka citizenship. Or as Kent put it here as well as is wriiten in the Ceclaration of Independence, the happiness of mankind.”
Ummm...one problem with discussing things with birthers is that they are used to reading sentence fragments, or sometimes stretch themselves to read an entire sentence. But as Ha Ha Thats Very Logical has pointed out, “I don’t think every reference to “the law of nations” is necessarily a reference to the book “The Law of Nations.”
When Kent wrote, “Congress claimed cognizance of all matters arising upon the law of nations...”, he didn’t capitalize “The Law of Nations”, nor did he cite the author, so he is not referring to a book written by Vattel.
From the Encyclopedia Britannica, “jus gentium, (Latin: “law of nations”), in legal theory, that law which natural reason establishes for all men, as distinguished from jus civile, or the civil law peculiar to one state or people. Roman lawyers and magistrates originally devised jus gentium as a system of equity applying to cases between foreigners and Roman citizens. The concept originated in the Romans’ assumption that any rule of law common to all nations must be fundamentally valid and just.”
http://www.britannica.com/EBchecked/topic/308654/jus-gentium
Also see:
http://www.constitution.org/cmt/law_of_nations.htm
Vattel wrote a book about the law of nations (jus gentium), but he did not originate the concept nor copyright the term.
As Kent continued to write, “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.”
As I said, I'm more than willing to defer to a competent Constitutional scholar. I'm guessing that wouldn't be you. But, on the off chance that I'm wrong, let me pose the question to you: would an American Indian, aged 35, born on a Reservation and proclaiming membership in a recognized tribe of the United States be today eligible for the Office of President?
Please show us where the notes of the 14th refer to A2 qualifications of the constitution and that by the passing of that amendment, it also changed the meaning of A2 qualifications. Even the most liberal of progressive lawyers haven't reached as far as you have. That is why they have for almost 5 decades tried to remove/change the language of A2 qualifications. But hey, you believe whatever fantasy you want. The 14th has 3 criterion, birth or naturalization & "subject to the jurisdiction". Now until immigrants no longer have to renounce any foreign allegiance as a requirement to becoming a US citizen, then ‘subject to the jurisdiction’ means exactly what it was intended by the framers of the 14th, a complete political allegiance, as in NOT owing allegiance to any foreign country and for those of us who were born here, it means FROM BIRTH, not from the age of majority when a person makes that choice freely for him/her self because they were told that some ancient form of feudal law made them a lowly subject instead of a free citizen at birth.
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