Posted on 10/07/2011 9:05:25 AM PDT by edge919
It has been claimed by Obama apologists that in relatively recent cases, circuit courts have given their opinion on the term "natural-born citizen" as meaning nothing more than being born in the country. Supposably this would presume that Obama, if it can be legally proven that he was born in the United States, as he claims, is a natural-born citizen in spite of being born of a foreign national father and NOT being born to citizen parents, as the Supreme Court defined NBC in Minor v. Happersett, etc.
One example of such a recent decision is Diaz-Salazar v. the INS (1982), in which it says:
The relevant facts which have been placed before the INS, BIA, and this court can be summarized as follows: The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States.
But, there's a problem. Following the guidance in this case, the children, despite the claim of being NBCs, would have been deported with their father.
In the case at hand, no special circumstances are presented sufficient to bring petitioner's situation within the extreme hardship standard. His children are still of pre-school age and thus less susceptible to the disruption of education and change of language involved in moving to Mexico. There are no unique reasons why petitioner, in comparison with the many other Mexicans in his situation now resident in the United States, will be unable to find employment upon returning to Mexico or why he or any member of his immediate family requires health care available only here. Thus, although we recognize the unhappy prospects which the petitioner faces, we cannot hold that the BIA abused its discretion in denying the petitioner's motion to reopen deportation proceedings.
(Excerpt) Read more at openjurist.org ...
Yes, it appears the Vattel birthers are losers all around. The birther’s heads will explode if either Rubio or Jindal are nominated for VP. Although I don’t think they have much influence in the Republican Party, if they make a stink to try to defeat the ticket and try to get people to vote 3rd party because of their crazy theory, I hope and predict that they will be completely written off by all conservatives. The 2012 election is too important to allow a bunch of nutjobs to sabotage our efforts against Obama. Thank you for the information regarding the 1844 case. I googled it and you are right, the same arguments made by Vattel birthers were made by the losers in that case. Somehow I am not surprised they latched onto a losing argument from a 167 year old case to support their losing argument!
If the topic were how to define natural-born SUBJECT, then English common law is meaningful. As for natural-born citizen — it is not.
There were some elements of common law that were used in a couple of the original colonies/states, but not in the U.S. as a whole. We know this because common law made children natural-born subjects if born abroad to fathers who were natural-born subjects. The U.S. evidently did NOT adhere to this common law, because they wrote a law to do this very type of thing within the 1790 Naturalization Act. If they were following English common law, there was no need to do this.
No, I'm only acknowledging that Gray used a variety of terms, but was consistent in separating natural born citizenship for his other types of citizenship at birth. The second point is that taken from a literal definition given by Minor, natives are the same, BUT (and pay attention to the BUT) to be native means to be born to citizen parents.
BUT, The Judge in Lynch v. Clark said IN 1844"
6. Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen. It is surprising that there has been no judicial decision upon this question. None was found by the counsel who argued this cause, and so far as I have been able to ascertain, it never has been expressly decided in any of the courts of the respective states, or of the United States.
This circumstance itself, in regard to a point which must have occurred so often in the administration of justice, furnishes a strong inference that there has never been any doubt but that the common law rule was the law of the land. This inference is confirmed, and the position made morally certain, by such legislative, judicial and legal expositions as bear upon the question. Before referring to those, I am bound to say that the general understanding of the legal profession, and the universal impression of the public mind, so far as I have had the opportunity of knowing it, is that birth in this country, does of itself constitute citizenship.
Thus when at an election, the inquiry is made whether a person offering to vote is a citizen or an alien, if he answers that he is a native of this country, it is received as conclusive that he is a citizen. No one inquires farther. No one asks whether his parents were citizens or were foreigners. It is enough that he was born here, whatever were the status of his parents. I know that common consent is sometimes only a common error, and that public opinion is not any authority on a point of law. But this is a question which is more important, and more deeply felt, in reference to political rights, than to rights of property.
The universality of the public sentiment in this instance, is a part of the historical evidence of the state and progress of the law on the subject. It indicates the strength and depth of the common law principle, and confirms the position that the adoption of the Federal Constitution wrought no change in that principle.
Sooo, this is LOL No.1 on you. Now, what is YOUR argument that you have been PROVEN not to know what you are gibberishing about. You have been trying to fool people here with stuff that was LOSING in court 167 years ago. Are you going to start disclosing that fact to people here??? I bet not.
Which, the answer just above proved you wrong about your conclusion. Now, to PROVE you are wrong about the way you supposedly figured it out, but which I think you just got from the LOSING side in a case of 167 years ago!!!
From Lynch versus Clarke 1844, on your 1790 Naturalization Act thingy.
The provisions of the naturalization laws enacted by Congress, are urged [that means that the LOSING side lawyer tried to say this, but lost!] as decisive, that children born here of alien parents were not citizens. The act of 1802, § 4, declares that the children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the government of the United States, may have become citizens of any one of the states, under the laws thereof, being under the age of twenty-one years at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States. (2 Story’s Laws of U. S. 852, 3.) A similar provision was enacted in the acts of 1790 and 1795. And the second section of the Act of 1804, provided that when any alien who had declared his intention, &c., should die before he was actually naturalized, his widow and children should be considered as citizens, and entitled to all the rights and privileges as such, upon taking the oaths prescribed by law. (2 ib. 943.) This section was repealed in 1828, (ch. 106.)—The acts make no distinction between children born here, and those born abroad, and it is said[by the lawyer for the LOSING side], this shows that none existed. That if, in fact, there had been any difference, the statutes would have provided only for the latter class.
The general words used, do not prove that general words were necessary. The statutes were necessary, and every part of them is fulfilled, although children born here were already citizens. They operate on the much larger class of the children of aliens, viz : those who were born abroad. With a law which admits aliens to naturalization after five years residence, the children that are born to them in the five years, will usually bear but a small proportion, to the number who come with their parents from abroad. It was just as necessary in the act of 1804, to have ditinguished between widows who were already citizens, and those who came here with their alien husbands. For a great many adult aliens come here single men, and marry citizens. Probably as great a proportion of the widows who are provided for in the general words of the Act of 1804, are native citizens, as the proportion of the whole number of children embraced by both acts, who are born here; yet no distinction respecting widows who are citizens, is made in the Act of 1804. And on this omission, the same argument urged [which means this is what the lawyer for the LOSING side tried to saythe law applied to the children but not the widows, which it didn't]relative to the children, will prove that all the widows of aliens must of necessity be aliens.
Upon the whole, the implication claimed from these statutes is not a necessary one, and cannot be raised to overturn an established legal principle.[ the established legal principle is THE COMMON LAW in the above post]
Sooo, now you have been PROVEN wrong on this part of YOUR argument, too. Sooo, with this part being WRONG, everything else you have been arguing is WRONG, too. Are YOU going to admit that you are WRONG, or are you going to pretend that the Judge didn't just clobber you to pieces with this??? Are you going to say something bad about the judge now, instead of just admitting you are wrong??? Are you going to start telling people here that this stuff you are saying was the LOSING side of a 167 year old law case, or are you going to lie to them and not tell them the truth about your argument???
it is way past time for you to stop fibbing about this stuff and trying to put one over on the people here, using lies and 167 year old LOSING arguments to try to keep Mark Rubio and Bobby Jindal from running for office. It is time for you to start behaving and repent all this stuff you have been doing. It is just plain WRONG.
Rogers v. Bellei
We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.WKA
that it must be interpreted in the light of the English common law rule which made the place of birth the criterion of nationality; that that 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;United States v Rhodes
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.Kent's commentaries, cited by Gray in WKA
"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,
There were some elements of common law that were used in a couple of the original colonies/states, but not in the U.S. as a whole.
Justice Scalia does not agree with you. From his debate with Breyer
If you have that philosophy, obviously foreign law is irrelevant with one exception: Old English law, because phrases like "due process," the "right of confrontation" and things of that sort were all taken from English law. So the reality is I use foreign law more than anybody on the Court. But it's all old English law.
I use British law for those elements of the Constitution that were taken from Britain. The phrase "the right to be confronted with witnesses against him" -- what did confrontation consist of in England? It had a meaning to the American colonists, all of whom were intimately familiar with my friend Blackstone. And what they understood when they ratified this Constitution was that they were affirming the rights of Englishmen. So to know what the Constitution meant at the time, you have to know what English law was at the time.There are others, but that's a good sample. I'll take Justice Scalia's opinion over yours on this.
"Legally, 0bama should have been deported with his dad!"
Discussion as to what the law actually says, and the fact that the law doesn't say that. Stanley Ann could have chosen to take baby Hussein and follow her sort of husband, but no law mandated that.
"Do you love abortion"?
"What are you talking about, this has nothing to do with the subject!"
"You didn't say no, so you must love abortion!"
"No, I am pro-life. Lets get back to the subject at hand." More discussion of WKA, etc.
"If you believe jus soli is the law of the land, you must love abortion!"
"No I don't! This is a ridiculous distraction! We're talking about the legalities of 'natural born' and deportation!" etc...
--------------------------------------------------------------
That's funny. You know what *I* hear when *I* discuss this issue with you guys? It goes something like this....
"I wonder what the founders meant when they required a president to be a natural born citizen?"
Ankeny v. Daniels! NWANKPA v. KISSINGER! Roger v Belli! Alden v. Maine!Rostker v. Goldberg! Minor v. Happersett!
"Excuse me, none of those people were founders."
McKay v. Campbell!Smith v. Alabama !United States v. Rhodes! Garder v. Ward! Perkins v Elg!
I hardly see how the opinions of judges are better at explaining the intentions of the founders than are the founders themselves.
Justice Gray! Justice Marshall! Justice Waite! Justice Gaston! Justice Roberts! Justice Daniels!
"Seriously, you people need to look at the principle involved. "
Wong Kim Ark! Lynch v Clark! The Venus! Slaughter-House Cases! Murray v. The Charming Betsey! Shanks v. Dupont! Elk v Wilkins!
" If these court decisions are infallible, what about Roe v Wade?"
Now you are just being unreasonable and trying to change the subject!
:)
That's pretty decisive. Great find.
"I wonder what the founders meant when they required a president to be a natural born citizen?"
Yes, a different approach - although I'm not sure you wonder, it looks like you've already decided what you want to think they meant. What I am discussing is what the law has been held to be by judges, as the Constitution gives the judicial branch this power. In the words of Justice Scalia
JUSTICE SCALIA: Well, you're begging the question. I mean, your question assumes that it is up to the judge to find THE correct answer. And I deny that. I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that's what it says, that's what it says.
Ankeny v. Daniels! NWANKPA v. KISSINGER! Roger v Belli! Alden v. Maine!Rostker v. Goldberg! Minor v. Happersett!
"Excuse me, none of those people were founders."
James Madison.
I did answer your post in my previous post, but I want to point out the definitive answer - this thread was not about what the Founders had in mind. It was about cases where the children were called "natural born citizens" and the father was an alien. The question raised was whether the child was deported with the father.
These are legal issues, and there are court rulings that address these issues. And THAT is what the thread is about.
The Founders embraced..domestic matters in Vattel's Law of Nations. Domestic matters: chapter XIX: natural born citizens are born to citizen parents. A country cannot perpetuate itself unless its citizens are born from citizens. 
But you are FIBBING BIG TIME. Because if you find a link to the book you are quoting, which YOU conveniently left out, (I wonder why???)then you see that it wasn't Vattel's quote about citizens the No.5 footnote was about. OH NO!!! Here is the link to the book:
And it is what it was talking about:
However, "international law, (,em>jus inter gentes) is only a subset of the law of nations (jus gentium). Indeed, a large segemt of the law of nations was the lex mercatoria that governed private commercial transactions. The Founders would not have viewed the law of nations as a body of law governing only international subjects. In the next chapter, we will examine the positive law of nations.
Hmmm, COMMERCIAL LAW, not citizenship stuff. And here is the quote the No.5 footnote was referring to, and WHAT A SURPRISE, it is not about natural born citizenship at all: This is from Vattel, since the book you quoted chopped it up a little
The state is obliged to defend and preserve all its members (§17); and the prince owes the same assistance to his subjects. If, therefore, the state or the prince refuses or neglects to succour a body of people who are exposed to imminent danger, the latter, being thus abandoned, become perfectly free to provide for their own safety and preservation in whatever manner they find most convenient, without paying the least regard to those who, by abandoning them, have been the first to fail in their duty. The country of Zug, being attacked by the Swiss in 1352, sent for succour to the duke of Austria its sovereign; but that prince, being engaged in discourse concerning his hawks at the time when the deputies appeared before him, would scarcely condescend to hear them. Thus abandoned, the people of Zug entered into the Helvetic confederacy.* The city of Zurich had been in the same situation the year before. Being attacked by a band of rebellious citizens who were supported by the neighbouring nobility and the house of Austria, it made application to the head of the empire: but Charles IV.73 who was then emperor, declared to its deputies that he could not defend it;—upon which, Zurich secured its safety by an alliance with the Swiss.† The same reason has authorised the Swiss in general to separate themselves entirely from the empire, which never protected them in any emergency: they had not owned its authority for a long time before their independence was acknowledged by the emperor and the whole Germanic body, at the treaty of Westphalia.
Vattel's Law of Nations chapter 17
Sooo, why did YOU try to fool everybody here with a phony quote where it wasn't about what you said, and then didn't even leave a link??? Aren't YOU ashamed of yourself???
So far as Mr. Vattel states the doctrine on the subject of citizenship in this section he states it correctly, but there are other questions on this subject, not noticed by him, which it would be well to state. These have reference to the following: “
“I. Children born of the subjects of one power in the territory of another.
2. Illegitimate children born of a foreign mother.
3. Foreign women who have married the subject of a State.
Upon these points the doctrine in United States, is,
1, That children of foreigners born here are American citizens if they elect to declare themselves so, whilst the children of American citizens born abroad are themselves citizens of the United States, unless the 14th amendment has changed this doctrine, upon which there is a difference of opinion;
2, Illegitimate children belong to the State of which the mother was the subject;
and 3, Except in the United States, the nationality of a wife is merged in that of her husband, so that in those countries, when a woman marries a foreigner she loses her own nationality and acquires his; but here a native woman marrying a foreigner remains the subject of the State, though an alien woman marrying a citizen of the United States becomes herself naturalized, unless she continue throughout her husband’s lifetime, a non-resident. Hall’s Inter. Law, secs. 68, 69, 70. “Notes on a Course of Lectures on Vattel’s Law of Nations” by James Gilmore, 1891.
Plus, again you left off a link, I guess because you do not want anybody checking up on you. Plus, you butchered the sense of the sentence as bad as edge919 butchers stuff, because "Vattel is correct" stuff is about owing allegiance to the U.S and the U.S being entitled to protection in return." Which is why Gilmore whoever pointed out about the stuff Vattel was NOT right about. Plus, the date of this is 1891 and OH what is it that happened 7 years later??? Wong Kim Ark maybe???
Sooo, please tell us how you managed to find the Gilmore stuff, and then managed to quote it, but then how you didn't quite manage to find the rest of his paragraph where it said:That children of foreigners born here are American citizens if they elect to declare themselves so, .
Were you just sloppy??? Or, were you trying to fool people here about stuff so they won't vote for Mark Rubio or Bobby Jindal??? This is two things now that you have just butchered to pieces, and falsely cut and pasted. You owe everybody here a explanation!!!
Plus, did YOU read No. 214- -the part YOU chopped off the book at, before it got into ENGLAND and said:
Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes [makes into a citizen]the children of a foreigner.
It sure is amazing how YOU leave off links and manage to stop quoting before you get to the part that contradicts you, isn't it???
Who did the Founders consider to be persons?
You really should stop posting in this forum faulty information obtained from far left websites.
Do you honestly believe there is any court today in this country that will cite the Vattel theory as an authority in defining natural born citizenship? You can’t even even cite a case in the past 100 years that uses Vattel to define nbc. It is obvious that the courts have relied on English common law rather than some 18th century Swiss philosopher when defining nbc. I suggest you acquaint yourself with SCOTUS cases such Wong Kim Ark or Rogers v. Bellei rather than Vattel if you are interested in the correct definition of nbc in USA jurisprudence. Until you become more aware of the correct legal definitions, you should refrain from posting wrong and misleading information
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.