Posted on 10/07/2011 9:05:25 AM PDT by edge919
Founder 2: But doesn't that sound a lot like "natural born subject"? Mightn't they think we mean the same thing but just substituted the word "citizen"?
Founder 1: Nah.
Absolutely incorrect.
Jus Soli is contrary to the interests of any Free nation.
Go argue with James Madison, then.
One has to look at the historical context, not by today's standards. In context, there was a big empty country, and a need to attract more citizens, especially those with skills. It was also a time when nine of the very Founders were born overseas (Scotland, Ireland, England, West Indies). Today, we have unwanted and illegal immigrants - a very different situation from the time of the Founders.
Founder 1: Nah
Founder 3: After all, it's not as if we declared independence because we wanted the freedoms guaranteed to Englishman by the common law. It's not as if we modeled most of our colonial laws on the common law.
It is the job of SCOTUS to apply the Constitution to the fact situation presented to them. It not their job to apply what they think is the right thing to do. That is the mentality of liberal activist judges. For someone who claims to be a conservative, you seem to have a lot of problems with the Constitution.
I assume that is supposed to be sarcasm, but your dialogue never rises to the level of absurdity. Indeed, most of the Founders were well acquainted with Vattel, and as the term was well enough understood at the time, no one would think it necessary to expound on it. I have for some time come to the conclusion that it is the subsequent influence of English law which created the confusion as to the meaning. As is related in this quote:
Attorney-General Black, whose opinion of July 4, 1859, concerning the case of Christian Ernst, a naturalized American citizen of Hanoverian origin who was arrested upon his return to Hanover, has become a classic on this subject. It seems worth while to quote from this notable opinion:
“The natural right of every free person, who owes no debts and is not guilty of any crime, to leave the country of his birth in good faith and for an honest purpose, the privilege of throwing off his natural allegiance and substituting another allegiance in its place—the general right, in one word, of expatriation—is incontestible. I know that the common law of England denies it; that the judicial decisions of that country are opposed to it; and that some of our own courts, misled by British authority, have expressed, though not very decisively, the same opinion. But all this is very far from settling the question. The municipal code of England is not one of the sources from which we derive our knowledge of international law. We take it from natural reason and justice, from writers of known wisdom, and from the practice of civilized nations. All these are opposed to the doctrine of perpetual allegiance. It is too injurious to the general interests of mankind to be tolerated; justice denies that men should either be confined to their native soil or driven away from it against their will.”
--------------------------------------------------------
Incidentally, something tells me that the U.S. Supreme Court could hand down a unanimous ruling tomorrow, written by Chief Justice John Roberts himself, that Obama is a natural born citizen, and that "natural born citizenship" does not require parental citizenship, and DiogenesLamp would still be arguing that the Supreme Court is wrong.
Unless they uncovered a treasure trove of heretofore unknown founders documents supporting their opinion, I would have to conclude that they are indeed wrong. I do not regard the Supreme Court as the final arbiter of truth. They may decide which direction the law enforcement guns get pointed, but they don't make fiction into fact.
Do you believe the Supreme court ever gets anything wrong, say, Roe v Wade? What if the decision was unanimous? Would you therefore proclaim it correct?
Meanwhile, on the WINNING side you find stuff like:
It may then be safely assumed, that at the Declaration of Independence, by the law of each and all of the thirteen states, a child born within their territory and ligeance respectively, became thereby a citizen of the state of which he was a native.
This continued unchanged to the time when our National Constitution went into full operation. There is no evidence of any alteration of the rule in any of the states during the period that intervened; and the references which will be made under another head, show conclusively that there had been no intermediate change in their policy.
and:
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.
"It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.
Your refutation would work better if you stopped repeating that sound bite and found further support for your argument elsewhere in his speech. Why would you think repeating something like a mantra would be persuasive? In any case, since you are repeating your soundbite, i'll repeat my response to it. Mr. Madison's very next words are:
" Mr. Smith founds his claim upon his birthright; his ancestors were among the first settlers of that colony."
A Jus Sanguinus argument for citizenship. Were Madison correct about "place", his speech would have ended with "it will therefore be unnecessary to investigate any other." The fact that he proceeded to "investigate" indicates that not even he believed "place" settled the issue. He goes on to explain that Mr. Smith was part of the "community" of South Carolina, and when that body gave up allegiance to Britain, Mr. Smith was bound by his relationship to the community to do the same. What community was Obama part of? Well, for much of his formative years, Indonesia. Then for awhile, Hawaii, (which given it's racial hatred for whites, is not exactly optimal for instilling American Values) then eventually New York and Chicago where he pursued relationships with the most hateful anti-American terrorist type organizations which were available at that time. Obama obviously had no loyalty to his American "community."
This more or less completely violates James Madison's further articulated principle regarding ties to his community.
No fallacy, and not my theory - this comes straight from Justice Scalia. His point (and I agree) is that you can't use court cases to change the law. You want the law or Constitution changed? Fine, get the legislature to do it. We hate judges legislating from the bench when the libs do it, are you now suggesting good conservatives like Scalia should legislate from the bench?
No, they should undo legislating from the bench, such as has occurred in several cases; Wong Kim Ark being the most obvious in this discussion. Roe v Wade and Kelo being other examples.
So it's ok for me to bring Kelo v New London into every "natural born" thread, and keep demanding you comment on it every few posts? And if you don't use the exact language I want, I can accuse you of being a property grabbing commie?
By all means bring Kelo v New London into the discussion. It supports my point perfectly. It is an obvious violation of the 5th amendment regarding basic property rights. It is just one more evil and wrong decision by the Supreme court. Do you agree or not?
You, a Vattle Birther, said, “Why would you think repeating something like a mantra would be persuasive?”
OH, my “Irony Meter” just blew a fuse, and I just blew coffee all over my keyboard. Oh Tee Hee!!! ROTFLMAO!!!
1. The writers upon the law of nations distinguish between a temporary residence in a foreign country for a special purpose and a residence accompanied with an intention to make it a permanent place of abode. The latter is styled by Vattel "domicile," which he defines to be, "a habitation fixed in any place, with an intention of always staying there."
Note that the Supreme Court defines domicile here, which was one of the criteria used to make Wong Kim Ark a citizen of the United States. Obama's parents did NOT have a domicile in the United States in accordance to this definition and therefore fails to be a citizen even under the 14th amendment. He is neither an NBC nor a 14th amendment citizen ... and that's IF he could legally prove he was born in Hawaii.
Ah, but look a little further, and see the very next lines:
It is well known to many gentlemen on this floor, as well as to the public, that the petitioner is a man of talents, one who would not lightly hazard his reputation in support of visionary principles: yet I cannot but think he has erred in one of the principles upon which he grounds his charge.So what is Madison saying? That Mr. Smith may found his claim on his parentage, but Mr. Madison thinks that is the wrong foundation.
No, they should undo legislating from the bench, such as has occurred in several cases; Wong Kim Ark being the most obvious in this discussion. Roe v Wade and Kelo being other examples.
Fine, get the Congress to pass the necessary laws. Because you're not going to get it undone any other way.
By all means bring Kelo v New London into the discussion. It supports my point perfectly. It is an obvious violation of the 5th amendment regarding basic property rights. It is just one more evil and wrong decision by the Supreme court. Do you agree or not?
You seem to be slow on understanding me. I have already told you that I think many decisions are wrong and dumb. I have already told you I disagree with Kelo. But that's not the point - the decision exists, whether I like it or hate it. Changes have to be made legally, not by ignoring decisions you disagree with.
James Madison's argument for citizenship is not just simpleminded jus soli. His understanding of the term "place" is very different from just being somewhere when you were born. He interprets it as an attachment to a fixed community. I very much doubt he would consider the bastard child of a transient alien who lived much of his young life in a foreign nation with a different language, culture and religion, as a "natural born citizen."
One has to look at the historical context, not by today's standards. In context, there was a big empty country, and a need to attract more citizens, especially those with skills. It was also a time when nine of the very Founders were born overseas (Scotland, Ireland, England, West Indies). Today, we have unwanted and illegal immigrants - a very different situation from the time of the Founders.
All the more reason not to assume they would be okay with it. They didn't have to face this situation, which is the result of the most simple minded interpretation of the ideas behind what James Madison said. During a time when place was synonymous with commitment to a community, the two things were interchangeable. Now that loyalty lacking transients have become commonplace, (Thanks to this very idea being discussed) it makes no sense to use a standard that had a very different meaning during a prior age, as justification for tolerating a destructive practice in this age. When they said "place" they meant born into a community; As in being "part of".
Even so, it still overlooks the fact that at this time it was an established aspect of English law that Children followed the allegiance of their father. Had James Madison been asked about this he would have said the same thing.
So you think Vattel is actually several writers at once? They are obviously referring to many people who wrote on the subject. Vattel is only one of them. Good try.
Obama's parents did NOT have a domicile in the United States in accordance to this definition and therefore fails to be a citizen even under the 14th amendment.
Before you even start arguing domicile, there's the little matter of a mother who was a US citizen.
The judge in Lynch v. Clarke (with an E by the way), was expressing a personal opinion, unfortunately for him, it was not based on any fact, from the very first sentence you quoted:
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.
There is NO law of the United States that says this or anything like this. In fact, the good judge contradicts himself by saying that there is no written law that says who a citizen is.
And the question whether Julia Lynch was or was not a citizen, must be determined by the national unwritten law.
IOW, this guy gave himself carte blanche to invent whatever law he wanted to make up.
After all, if there was national law, the Supreme Court certainly could have quoted it in Slaughterhouse, Elk, Minor or Wong Kim Ark. The Lynch judge goes on:
Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not.Notice that this was NEVER quoted by the higher court. This particular judge doesn't come across as very educated. He says:
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 quote is mainly this judge's way of playing ignorant. And he does it to great effect here when confronted directly with a Supreme Court case that clearly undermined his belief in the "national unwritten law."
The case of Inglis v. The Sailor's Snug Harbor was cited as having been decided on the principle of the public law, that the national character of an infant followed the condition of his father. I do not so understand the decision.
Do not so understand the decision?? This judge says it's because Inglis was born BEFORE the Declaration of Independence. Yet the Supreme Court CLEARLY said:
2. If born after the 4th of July 1776, and before the 15th of September of the same year, when the British took possession of New York, his infancy incapacitated him from making any election for himself, and his election and character followed that of his father, subject to the right of disaffirmance in a reasonable time after the termination of his minority; which never having been done, he remains a British subject, and disabled from inheriting the land in question.
Sorry, but this shows that the judge in Lynch ignored clear precedent. There's a reason why very little is quoted by the Supreme Court from this decision. It was junk.
No, it is the result of strict construction, since the US follows common law in many things. To paraphrase Justice Scalia quoted above, if you want to know what the Founders meant, look to English common law and Blackstone. The situation has changed, so change the Constitution and the law. Don't claim that the decisions don't exist.
Even so, it still overlooks the fact that at this time it was an established aspect of English law that Children followed the allegiance of their father.
Wrong. Go read up on it and you'll see English common law said that born on the soil = natural born, no matter the father's status (usual diplomatic exceptions). You'll see it referred to in several of the cases we've been discussing here. But you already know that, don't you?
It is a pernicious British Common law that has not been successfully excised from the American legal mindset. It was so abhorrent that the Legislature of New York passed a specific law rebuking it after a New York judge interpreted New York's lack of a citizenship law as requiring the application of English Common law to remedy a case.
It is the job of SCOTUS to apply the Constitution to the fact situation presented to them. It not their job to apply what they think is the right thing to do. That is the mentality of liberal activist judges.
Fine, then stop trying to use a Slavery Citizenship law to rewrite presidential qualifications. It did no such thing.
For someone who claims to be a conservative, you seem to have a lot of problems with the Constitution.
No, I have problems with the LYING about what it says and what it means. You know, what YOU people have been doing. The 14th amendment does not create a right to abortion, nor does it make citizens out of transient alien's children, and that is even if you grant it the credibility which it doesn't really deserve; having been foisted on the nation at gun point.
It's as if you simply haven't read any of the contrary evidence. That this interpretation also goes completely against the stated intention of John Jay, (arguably the father of the Article II requirement) does not seem to make the slightest impression on any of you. I am reminded of the time when Liberals were proclaiming the second amendment to be a right of states to keep militias, rather than an individual right to own weapons. The absurdity of the idea likewise never seem to penetrate their consciousness either.
Stuff like this is all I need to see to tell me that I should ignore the rest of what you write. A State case does not decide a Federal Issue. Even at that, the legislature of New York rectified the decision of Lynch v Clarke with subsequent legislation. A more defacto renunciation of the theory I cannot fathom.
You are in Mr. Rogers territory as far as i'm concerned. If you write a long message to me, i'm not going to bother reading it.
You might just as well run Shakespeare's plays through an enigma machine and try to read the output as to understand whatever it is that you are attempting to say. The only thing that comes through is a vague and general tone of denigration, but the particulars of it are not worth the trouble to explore.
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.