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 ...
I can’t find out exactly how much he did say. If it is just those few words, then who knows if he is talking about whether birthright citizenship is not as good an idea as some other way, which perhaps does not include the kids of illegal aliens, or people here on vacation. Or, if he is talking about what the law actually is.
If he is talking about what the law actually is, then Prof. Solum will get clobbered WITH LOGIC pretty quickly.
The only case mentioned in the Internet Article is the Minor Happersett one, which is a voting rights case and is not a citizenship case. The Minor judges are very up front about how they don’t need to resolve “are kid of foreigners born here natural born citizens” issues.
The "common law" used to define NBC is a verbatim match of law of nations, NOT English common law. That he didn't cite any other cases, just shows that Gray seems to have misconstrued the Minor in terms of its alleged use of common law. If you can't find any actual common law in that decision, then it effectively negates the idea that common law was used in WKA to define NBC. It wasn't.
The rest of you post is therefore moot or simply wrong, such as this last part.
That is what you are doing when YOU ignore what the Wong Kim Ark judges said:
I haven't ignored what WKA judges have said. I have cited several passages from that decision, all of which shows that the case affirms the Minor definition of NBC. The passage you're quoting here was addressed in Post #321. IOW, you've ignored that I've addressed it already ... and this was in a post that was a direct reply to you. Digging it up later won't change the fact that it's still doesn't say what you want it to say.
No, you’ve just been too lazy or scared to prove your theory. Show me some proof. I want to see writers back then in those days of 1875, say that the Minor judges defined natural born citizenship. I want to see court cases that quote Minor for that purpose. I want YOU to explain inconsistencies in your theory.
I want you to explain why only 6 years Minor, Chester Arthur ran for office and nobody hollered Minor Happersett!!! Minor Happersett!!! at him because his father was not a citizen. What, did somebody “scrub” all the libraries??? Oh wait, a story is just now breaking that happened in 1880!!! OMG!!!
a) The only "writer" who matters is Justice Gray who cited and affirmed the Minor definition of NBC more than 20 years later. b) There aren't any inconsistencies and there's no theory. The court was very clear: all children born in the country to parents who were its citizens ... THESE were the natural-born citizens.
I want you to explain why only 6 years Minor, Chester Arthur ran for office and nobody hollered Minor Happersett!!!
As far as they knew, he was born in the country to a citizen father. Even under YOUR common law theory, he meets a criteria that Obama fails, because Arthur's father adhered to the United States, while Obama's father didn't. Third, even under a 14th amendment theory, Arthur still meets the criteria that Obama fails, because his father had a permanent residence and domicile in the United States unlike Barak Sr. That's three strikes, squeegy. You're out.
Let's see - several SCOTUS cases mention this (Rogers v Bellei, WKA, Ankeny) the State Dept agrees,
Jus soli (the law of the soil) - a rule of common law under which the place of a person’s birth determines citizenship. In addition to common law, this principle is embodied in the 14th Amendment to the U.S. Constitution and the various U.S. citizenship and nationality statutes.several early legal scholars mention it, (Rawle, St. George Tucker) but somehow it escapes you. Wonder why?
In law of nations, natural-born is based on natural, universal principles.
They are obviously NOT universal principles, since England did not subscribe to these principles. Law of Nations is based on Vattel's ideas, which are not everyone's ideas. (An example: "Hence is deduced the establishment of natural society among men. The general law of that society is, that each individual should do for the others every thing which their necessities require, and which he can perform without neglecting the duty that he owes to himself" or "ince the object of the natural society established between all mankind is — that they should lend each other mutual assistance, in order to attain perfection themselves, and to render their condition as perfect as possible, — and since nations, considered as so many free persons living together in a state of nature, are bound to cultivate human society with each other, — the object of the great society established by nature between all nations is also the interchange of mutual assistance for their own improvement, and that of their condition. "
Lots more, but the point is that the US follows Vattel in some things (adherence to treaties, etc.) but not in all.
In England, 'natural-born' is based on statutory, but arbitrary declarations, influenced by the whims of the crown. The latter is what was described in Calvin's Case where the King declared that children of Scots born in England were heretoforward natural-born subjects. The Scots were the ONLY aliens this originally applied to.
How many errors can we find? (Reading comprehension is your friend)
The principles of citizenship in the U.S. are based on consent of the governed, not obligations demanded of a monarch.
And just where you do see "obligations demanded of a monarch" in natural born citizenship? Ridiculous. If you find your citizenship such an obligation, no one will prevent you from renouncing it.
"You appear to be conflating Vattel's Law of Nations with the common law. You have any back up for that legal theory?"
Yes, the Minor case where Justice Waite used the term "at common law" to begin his definition of NBC, but the actual definition is, as we ALL know, a verbatim match of law of nations. I'll show this one more time and then we'll check to see if you're honest enough to admit that it matches.
Strawman. It matches (and I've never claimed otherwise) but it is still not the common law definition. Now, are you honest enough to admit that? How about all the quotes I've given referencing common law "natural born" as born in country or jus soli? You want to ignore those?
Sorry, but this is an outright falsehood. His criteria for NBC was "never doubted." The part for which there was doubt was about whether persons born without reference to parents were CITIZENS. It does not say there is doubt about them being natural born citizens. If they met the criteria for NBC, there was no doubt that these persons would be citizens. If they weren't NBCs, then there was doubt about their citizenship.
Which, by your own standards, would make no sense. Minor clearly acknowledges that anyone born on American soil (usual diplomatic exceptions) is a citizen by the 14th amendment. So you are claiming that Justice Waite didn't understand that the 14th amendment removes any doubt re: born on the soil = citizen?
"WKA quoted many people on common law, including those who equated "natural born subject" and "natural born citizen". Ignore it as much as you like, you won't make it disappear."
Sorry, but this is not completely true.
Sorry but you statement is not true, while mine is. Some relevant quotes (again!)
"All persons born in the allegiance of the King are natural-born subjects, and 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.
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,
"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 is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.Justice Gray also refernces Calvin's Case, which you appear to have misunderstood in multiple respects. Also
"Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth."I could go on, but clearly there are several quotes in WKA which reference English common law, and that the US follows this interpretation of "natural born." I won't even say "good try" on this one, as it is so obviously a false argument on your part.
There is NO "Minor doubt." The Minor decision was UNANIMOUS. The NBC definition of NBC said it was NEVER doubted.
Strawman (or reading comprehension problems, or both.) The Minor decision on Virginia Minor's right to vote or not was unanimous, but there was no decision made on "natural born." The court gave one circumstance where a citizen was natural born, but did not exclude other circumstances (composition fallacy on your part). The court was clear: there was doubt, and this case would not resolve the doubt.
Is WKA a "native" in the "nomenclature of which the framers of the Constitution were familiar"???
Yes. The Framers wrote much of the Constitution in light of common law, and they were intimately familiar with common law.
Did the 14th amendment citizenship clause apply to natives or those who were considered aliens?? According to this quote in WKA, it applied to aliens. The questions we have to consider and decide in these cases, therefore, are to be treated as involving the rights of every citizen of the United States, equally with those of the strangers and aliens who now invoke the jurisdiction of this court.
A charming overreach on your part. This quote comes from YICK WO V. HOPKINS, where the case was about laws which affected aliens who were legal residents of the US. Good try.
Once again, reading comprehension would be your friend, if you would allow it. This has been looked at quite thoroughly in the past. Look at the Independence Act again:
Any reference in subsection (2) or subsection (3) of this section to a colony, protectorate or protected state shall, subject to subsection (7) of this section, be construed as a reference to a territory which is a colony, protectorate or protected state (within the meaning of the British Nationality Act Colonies 1948) on the appointed day, and, accordingly, shall not include a reference to Kenya or any part thereof.Which means if the person or person's father was born in Kenya, that person, if claiming Kenyan citizenship, does not retain British citizenship.
Plus there's a whole section on dual citizenship in that same Constitution.
Yup, but it doesn't apply to 0bama. Reading comprehension -
12. (1) Any person who, upon the attainment of the age of twenty-one years, was a citizen of Kenya and also a citizen of some country other than Kenya shall, subject to the provisions of subsection (7) of this section, cease to be a citizen of Kenya upon the specified date unless he has renounced his citizenship of that other country, taken the oath of allegiance and, in the case of a person who was not born in Kenya, made and registered such declaration of his intentions concerning residence as may be prescribed by or under an Act of Parliament.
When we apply these situations to Barry Soebarkah Soetoro Hussein Obama, we see that even if he could prove he was born in the United States, he would not have been legally considered to be a natural-born citizen.
Your opinion, which the courts, several US Attorneys General, and early legal scholars do not agree with. I remind you again of President Reagan's Attorney General Edwin Meese:
“Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are “natural born citizens” and eligible to be President.From the Heritage Guide to the Constitution 2005
That is funny. Now you're suddenly willing to equate common law AND Vattel references.
Reading comprehension again! I do not equate them, not did I in any way say that I did. You claim the justices rely on Vattel, and initially used any "law of nations" reference as relating directly to Vattel's book. I point out that "law of nations" is a body of law, like "tort law" or "criminal law." The justices cited Vattel, but they also cited common law. Not because they are the same, but because they are different.
No, in one instance it specifically defines them as citizens: "The term “national of the United States” means (A) a citizen of the United States,
However, in the part you cited where they had "inferior" rights and privileges, it specifically said the nationals in that case were NOT citizens. Did you read it?
Sorry, but the only composition fallacy is YOURS.
Do you know what a composition fallacy is? It sure doesn't seem like it.
You're misreading what the decision said was doubted, which was the citizenship of those who didn't fit their NBC definition. And, it didn't give ONE instance. It used the NBC definition to justify the court's reasoning for saying WOMEN didn't need the 14th amendment to be citizens. If there was doubt about NBCs, then this opinion is NOT supported.
YOur logic doesn't hold up. Minor starts by citing the 14th amendment, so obviously the justices know that someone born on US soil is a citizen. That is not in question. The fact that Virginia Minor was a natural born citizen with or without the 14th amendment, does not mean the justices opinion wasn't supported - do you even understand what their opinion meant?
Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon anyone, and that the constitutions and laws of the several states which commit that important trust to men alone are not necessarily void, we Affirm the judgment.Meaning that the 14th amendment didn't change the right of states to deny the vote to women. They could withhold suffrage before the amendment, and could withhold suffrage after the amendment.
You seem to think that if I quote Justice Scalia on common law being the basis of much of the Constitution, it means Scalia can't cite Vattel for anything without voiding his statement. That is absurd. Vattel had some good points to make, but in terms of "natural born" the US follows common law, not Vattel. I have given you several quotes in my previous post to show you that (and Attorney General Meese's quote in this post.)
Minor DEFINED NBC. That definition was quoted and affirmed.
You'd desperately like to believe it, but it's not true. Minor quoted a definition, and said as one circumstance there was no doubt, but there was doubt about the other. And that the case would not resolve that doubt. The case affirmed one thing only - that states could restrict the vote to men alone. (You did read the case, didn't you?)
Rogers v. Bellei only affirmed jus soli for statutes of the colonies: "These statutes applied to the colonies before the War of Independence." Mr. Quote Butcher, you're dropping the context here.
Don't think so, not when you read the case. What you just cited was from another case (Weedin v. Chin Bow), quoted in Rogers. The court went on to say:
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.Pretty clear for those who read it.
Ummmm, hoosier hillbillies ...
Ah yes, call names when you can't refute the evidence.
the 18th century treatise is the same one that Scalia cited by name and the quotations of Members of Congress are from the AUTHORS of the 14th amendment. It's called "original intent."
Funny, Scalia says he relies on common law to understand the meaning of the Constitution. He cites Vattel occasionally, but common law (according to his statement) is his most frequent guide. Is it your opinion that Justice Scalia doesn't know what he uses to determine the meaning of the Constitution?
I have posted quotes from the authors of the 14th amendment, to show they did not exclude children of foreigners from "natural born." Do you need me to find them again? I will if your memory of this is poor.
Ankeny did NOT declare Obama to be an NBC ... NOR did they declare him eligible for office. Squeeky's head is going to explode again. You're not helping her cause.
Do you understand that when the court says "this whole category is natural born" one does not then have to say "oh by the way, Marco Rubio is natural born, Bobby Jindal is natural born, John Doe is natural born..." or do you always need things more concrete than that? The court does not often oblige such needs. From Ankeny
The Plaintiffs do not mention the above United States Supreme Court authority in their complaint or brief; they primarily rely instead on an eighteenth century treatise and quotations of Members of Congress made during the nineteenth century. To the extent that these authorities conflict with the United States Supreme Court‟s interpretation of what it means to be a natural born citizen, we believe that the Plaintiffs‟ arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as trueTo break down what the court is saying for you:
and you seem to forget that Diaz v INS was part of my OP. The court in that case took the claim of NBC at face value and kicked it in the nuts by saying they didn't care ... the kids can move back to Mexico.
I'm well aware, but your reading comprehension was poor on that case, too. The court said the kids were NBC. They also said it wouldn't affect the deportation of the parent. The kids could move to Mexico with the parent, but they could also stay in the US. Or else show me where it says the kids can't stay in the US?
You do the same thing the Ankeny court said of the plaintiffs - you make odd conclusions and assume they have the force of law. They don't.
Out of context on Gray quoting Waite. YOU provide the context of the statement, please, if you are able. I know where it is, and I can, but it is time for you to prove you know how to read, and comprehend, not me. Plus, this is YOUR theory, sooo YOU start proving it with something besides conclusions.
There was a controversy over where Chester Arthur was born. The election was only 5 years after Minor Happersett, so YOU please explain why YOUR citizenship case of the ages was ignored. People were certainly aware his father was from Ireland. If you need help, look up A.P. Hinman.
Please also explain how a lawyer, A.P.Hinman was apparently unaware of the two citizen parent theory when it was only 5 years old, by YOUR theory. Please explain on what basis Hinman objected to Arthur.
Also please explain why Judge Waite, who YOU claim just decided that NBC required two citizen parents, swore in 5-ish years later Chester Arthur who had but one citizen parent.
Please also provide the analysis of Wong Kim Ark that I previously asked for, by section. Explaining for each section what the section was about, with representative language, and how that language tied in to the rest of the decision.
WKA has 19,464 words in it, and to date you have tried to characterize it by maybe 20 or so words. Or 1% of 1%. Please explain the other 99.99% please as I have asked above. YOU are the one with a minority theory, and it is time for YOU to start doing some homework on it.
Haven’t you noticed on this thread how YOU are constantly being provided a ton of information and cites by people, which you ignore. That needs to change. This is YOUR theory, so YOU need to start doing the explanatory work on it. YOU explain the inconsistencies. YOU explain the contradictions. YOU have been spoiled. Maybe that which you obtained too easily, you esteem too lightly.
You are correct. That is because they considered it IRRELEVANT to "natural citizen" status.
Your opinion, founded on very little. By those standards, there would be no "natural born" citizens from before the naturalization act, which is obviously not true. If you look at the debates in the Congressional Globe, Feb 4th 1790, p 1160, In the midst of discussing terms of naturalization for aliens:
The case of the children of American parents born abroad ought to be provided for, as was done in the case of English parents in the 12th year of William III.
And THAT aspect of English law was specifically adopted by statute!
So are you saying if not specifically adopted by statute, it doesn't exist in American law? (A surprise to Justice Scalia and other Justices!) That having mentioned "natural born citizen" in the Constitution, they did not have a clue what it meant until February of 1790? That's absurd. The Naturalization Act did not apply to those born on American soil. They did not have to "naturalize" or clarify the situation of those born on American soil because they were already natural born.
You have acknowledged that Courts can and do get things wrong.
Of course they get things wrong, they're human and failable. But even when wrong, it is still considered current law. You don't erase the law by claiming it is wrong.
I have demonstrated by citation of first principles that this is the case in those examples you have put forth such as Wong Kim Ark.
Sorry, but you haven't. All you have demonstrated is that you disagree with the decisions, and think they should be different. WKA accords with our heritage of common law. Change it by changing the Constitution, not by denying it out of existence.
You just admitted that our "naturalization act of 1790 was very like the "English Fathers" common law. If your theory is correct that our laws governing citizenship are based on the English Common law, then what need would there have been to Create this specific aspect of it through statute? Hmmm????
See the quote above. England passed a statute for this, in 1697 because this wasn't covered by common law. If it had been, no statute would have been necessary.
On the other hand, the English Monarchy which created the jus soli principle, DID, in fact make servants out of them. If Transient Alien's children are to be made into "subjects" required to serve the needs and desires of the state, then it makes perfect sense to push them into this status for any pretext, such as being born within someone's borders....In a monarchy though, they are chained to perpetual allegiance and servitude to the monarch.
Bizarre idea, and not consistent with English history of the time. Many wanted the rights of English subjects, which were mostly superior to other countries (prior to the American Revolution). A transient alien could always leave, with his children, and return to his place of origin. This is a strange argument, with no history to back it up.
I'm not going to spend a lot of time on what you've posted this time around since I've already debunked most everything you've posted. That you list Ankeny as a "SCOTUS" case pretty much destroys your petty attempts to be dismissive with your comments about "reading comprehension" and how something supposably "escapes" me. It just shows how sloppy your arguments are.
They are obviously NOT universal principles, since England did not subscribe to these principles.
They did according to Blackstone:
THE law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world; in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance frequently occur between two or more independent states, and the individuals belonging to each.How many errors can we find?
IN arbitrary states this law, wherever it contradicts or is not provided for by the municipal law of the country, is enforced by the royal power : but since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land.
link
YOU have found none. You need to re-read what I wrote. I was talking about the original ACT and how it was expanded beyond its original intentions through Calvin's Case. You're response completely misses that point.
And just where you do see "obligations demanded of a monarch" in natural born citizenship?
What the HELL are you talking about?? Do you NOT see the word NOT in front of "obligations demanded of a monarch"???? It's this kind of sloppiness that undermines everything you post. You miss key words and make mistake after mistake after mistake. You would have saved yourself a lot of embarrassment by NOT returning to this thread.
There's nothing out of context. You've seen the Gray citations of Waite several times now and you've been proven wrong over and over on your belief.
There was a controversy over where Chester Arthur was born. The election was only 5 years after Minor Happersett, so YOU please explain why YOUR citizenship case of the ages was ignored. People were certainly aware his father was from Ireland. If you need help, look up A.P. Hinman.
I'm not going on a goose chase because you can't support your argument. If you think you have something, you need to cite it. Otherwise, whatever point you think you have fails. It will most likely fail anyway, but one does NOT have other people do their work for them.
Also please explain why Judge Waite, who YOU claim just decided that NBC required two citizen parents, swore in 5-ish years later Chester Arthur who had but one citizen parent.
Both of his parents were citizens. The father naturalized when Arthur was still in his minority. There's no evidence that Waite would have known about the timing of when Arthur's father was naturalized. If you have evidence to show that he knew and ignored it, let's see this evidence.
Please also provide the analysis of Wong Kim Ark that I previously asked for, by section. Explaining for each section what the section was about, with representative language, and how that language tied in to the rest of the decision.
Nobody owes you an "analysis." The case and context has been explained to you several times, but particuarly in this post: #572.
Haven’t you noticed on this thread how YOU are constantly being provided a ton of information and cites by people, which you ignore.
Haven't you noticed on this thread how YOU are constantly ignoring that I've debunked everything that has been provided?? ... and that I've provided much more information and citations that support what I've said??? I've explained YOUR contradictions and YOUR inconsistencies and you simply ignore that. And ONE MORE TIME ... I'm not pushing a "theory" ... the Courts are very clear: all children born in the country of parents who were its citizens. THESE are the natural born citizens.
Your quote from the Congressional Globe hurts your argument. It shows that the Congress didn’t presume common law would automatically be in effect. By your own admission, the English statute was passed nearly 100 years prior ... which means it would be part of the common law. This shows there was selectivity about what parts of English common law were respected in the new United States.
Your opinion, founded on very little.
If by "very little" you mean the obvious fact that they passed a law proclaiming them to be "natural born citizens" without worrying about what soil they were born on, then you are correct. :)
By those standards, there would be no "natural born" citizens from before the naturalization act, which is obviously not true.
Come again? That sounds like a non-sequitur. The first occurrence of born "natural citizens" occurred on July 4, 1776, and has continued indefinitely ever since then.
If you look at the debates in the Congressional Globe, Feb 4th 1790, p 1160, In the midst of discussing terms of naturalization for aliens:
The case of the children of American parents born abroad ought to be provided for, as was done in the case of English parents in the 12th year of William III.
Yes, I cite that very part of the debates of the Act myself. I'm not sure what aspect of your argument it is you are attempting to support by citing it, but it seems strongly supportive of my contention that "natural citizen" status is not determined by the soil upon which someone is born, and it even cites precedent in English law. :)
So are you saying if not specifically adopted by statute, it doesn't exist in American law?
No. I'm saying that if it IS specifically adopted by statute, then you can accept it as genuine American law, even though it was previously British. It is those aspects that are NOT specifically adopted by statute that need to be looked at before being accepted as part of American law.
(A surprise to Justice Scalia and other Justices!) That having mentioned "natural born citizen" in the Constitution, they did not have a clue what it meant until February of 1790? That's absurd.
Yes it is. Why would you suggest such an absurd thing? The Delegates and the members of each ratifying state legislature very likely knew exactly what "natural born citizen meant" and the Naturalization act of 1790 reflects that knowledge, it does not attempt to alter it.
While we are on this subject, I wanted to let you know I've found several references to Vattel and the Law of Nations in several of the Debates on Ratifying the Federal constitution among several of the state legislatures. Blackstone is mentioned (in the Pennsylvania debates) in the context of how the proposed Federal constitution is DIFFERENT from the British form of government. :)
The Naturalization Act did not apply to those born on American soil. They did not have to "naturalize" or clarify the situation of those born on American soil because they were already natural born.
As virtually all of those born on the soil from 1776 onward were born of citizens of the states, except for slaves and Indians, which curiously weren't regarded as citizens, despite meeting YOUR definition, the overlap is so nearly complete as to be nearly impossible to distinguish the one from the other. Were it not for the ubiquitosity of Vattel and his widely accepted definition, the naive would think that Monarchical law created to grab servants, might hold sway. :)
Of course they get things wrong, they're human and failable. But even when wrong, it is still considered current law. You don't erase the law by claiming it is wrong.
Au Contraire, Mon Frère. That is the first step! You denounce it constantly as has been done with Roe v Wade and Kelo. By the way, speaking of which... how much respect should we have for this decision? This one judge would have flipped the entire outcome if he had only been a little more perceptive.
Sorry, but you haven't. All you have demonstrated is that you disagree with the decisions, and think they should be different.
I believe I have proved it. Perhaps you've missed some of what I have posted regarding it? The Gray court defied the legislature in their interpretation of the law. Interestingly enough, Justice Gray was appointed by Chester Arthur who might prefer to have a judge interpret the law in such a way as to make him legitimate. Even so, the decision was NOT unanimous, a tell tale sign in my opinion that something is amiss with someone's understanding.
WKA accords with our heritage of common law. Change it by changing the Constitution, not by denying it out of existence.
Again, in order to fix a problem, you first must make people aware that it IS a problem.
See the quote above. England passed a statute for this, in 1697 because this wasn't covered by common law. If it had been, no statute would have been necessary.
Well, to be picky, this guy claims it is based on an English Law from 1350, but what's a few centuries among friends? :)
The result of the principal case is to limit the category “natural born” to those who become citizens under the doctrine of jus soli; this makes it co-extensive with the term “native born.” Of importance in this problem is whether these children took the nationality of their parents at common law, for if they are citizens by virtue of their birth and without the aid of statute, then certainly they are “natural born” and not “naturalized” citizens. In most continental European countries the doctrine of jus sanguinis is applied. England follows the same rule, both by virtue of the common law and under a declaratory statute of 1350 guaranteeing such application. As a result, it is generally concluded, despite occasional dissent,” that jus sanguinis was the common law doctrine. (8 1 Willoughby, The Constitution §202 (1922); Flournoy and Hudson, Nationality Laws (1929); Harvard Research in International Law on Nationality, 23 AM. J. INT. L., Spec. Supp. 80 (1929).
There is also the curious fact that England NEVER USES "jus soli" for their Leadership positions. They ALWAYS use "jus sanguinus." Does this not make you want to question your claim that we follow the English laws on eligibility for Governance?
Bizarre idea, and not consistent with English history of the time. Many wanted the rights of English subjects, which were mostly superior to other countries (prior to the American Revolution). A transient alien could always leave, with his children, and return to his place of origin. This is a strange argument, with no history to back it up.
Not sure what you are talking about. As bad as the English were, the French were much worse. (to the peasants, that is.) English law still required "perpetual allegiance" so unless you were planing on settling in English held territory, It wouldn't seem likely that the crown would tolerate it's subjects avoiding it's beck and call, or worse, failing to pay taxes to it. Look at how well they treated the Colonies, and those WERE English held territories. :)
THE law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world; in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance frequently occur between two or more independent states, and the individuals belonging to each. IN arbitrary states this law, wherever it contradicts or is not provided for by the municipal law of the country, is enforced by the royal power : but since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land.
Back to claiming "law of nations" always refers to Vattel, are you? Newsflash - "law of nations" is a body of law. You keep trying to say that Vattel = common law, but it doesn't.
You need to re-read what I wrote. I was talking about the original ACT and how it was expanded beyond its original intentions through Calvin's Case. You're response completely misses that point.
My response points up some of your errors, which you don't want to acknowledge. I guess to you, that's "missing the point."
Go back and reread the Naturalization Act – it specifies born beyond the sea or out of the limits of the United States. Which obviously means it doesn’t apply to those born in the United States.
Yes, I cite that very part of the debates of the Act myself. I'm not sure what aspect of your argument it is you are attempting to support by citing it, but it seems strongly supportive of my contention that "natural citizen" status is not determined by the soil upon which someone is born, and it even cites precedent in English law. :)
English common law has been clear that “born in the ligeance of the King” is natural born.
that all those that were born under one natural obedience while the realms were united under one sovereign, should remain natural born subjects, and no aliens; for that naturalization due and vested by birthright,The mention in the debates was that like England, the US should provide that those not born on American soil, but born of US citizens abroad, should also be proclaimed “natural born”.
The Delegates and the members of each ratifying state legislature very likely knew exactly what "natural born citizen meant
They did, because like many phrases in the Constitution from common law, “natural born” comes from common law.
and the Naturalization act of 1790 reflects that knowledge, it does not attempt to alter it.
The Naturalization Act extends “natural born” beyond the long time common law definition to include those born abroad. It does not replace the original meaning.
While we are on this subject, I wanted to let you know I've found several references to Vattel and the Law of Nations in several of the Debates on Ratifying the Federal constitution among several of the state legislatures. Blackstone is mentioned (in the Pennsylvania debates) in the context of how the proposed Federal constitution is DIFFERENT from the British form of government. :)
I have no doubt Vattel is mentioned at places, he was an important writer on international law. However, as Justice Scalia mentions, much of our Constitution is founded on common law. Or do you think Scalia doesn’t know what he is talking about?
As virtually all of those born on the soil from 1776 onward were born of citizens of the states, except for slaves and Indians, which curiously weren't regarded as citizens, despite meeting YOUR definition,
Which we have discussed before. Slaves were omitted because they were property. Indians were omitted because they were considered sovereign nations inside the US. You’ve been shown them before, do I have to again find the quotes showing that?
Were it not for the ubiquitosity of Vattel and his widely accepted definition, the naive would think that Monarchical law created to grab servants, might hold sway. :)
And that’s truly nuts. For the most part, the rights guaranteed Englishman were enviable compared to other pre-United States countries. The colonists did not revolt because they had the rights of British subjects, they revolted because the common law rights were denied to them.
“Of course they get things wrong, they're human and failable. But even when wrong, it is still considered current law. You don't erase the law by claiming it is wrong.
“Au Contraire, Mon Frère. That is the first step! You denounce it constantly as has been done with Roe v Wade and Kelo. By the way, speaking of which... how much respect should we have for this decision? This one judge would have flipped the entire outcome if he had only been a little more perceptive. .
Denounce all you want, but don’t claim it isn’t current law. It exists, it’s current law. You can’t wish or denounce it out of existence.
I believe I have proved it. .
Nope. You’ve shown you don’t like the decision. Not that it isn’t currently accepted law.
. Even so, the decision was NOT unanimous, a tell tale sign in my opinion that something is amiss with someone's understanding.
Shall I now give you the long list of decisions that weren’t unanimous, but which are currently accepted law?
Well, to be picky, this guy claims it is based on an English Law from 1350, but what's a few centuries among friends? :)
I think you or he is misunderstanding the difference between the laws. The 1350 law gave the rights of inheritance, but did not proclaim those born beyond the sea as natural born – you can read some excerpts in the WKA decision. Later statutes were more specific: 1708, 1731, and 1773. This makes me suspect anything this guy has written, besides the fact that he appears to contradict himself. But what’s a few centuries between friends? :)
There is also the curious fact that England NEVER USES "jus soli" for their Leadership positions. They ALWAYS use "jus sanguinus." Does this not make you want to question your claim that we follow the English laws on eligibility for Governance?
”Leadership” is very nonspecific when it comes to a monarchy. Are you referring to the monarchs, or to other positions? Links or cites, please. Also, that’s a strawman, since I never said we follow English laws on eligibility for governance, I said (as do the courts, various Attorneys General, and early American legal scholars) that we follow English common law on “natural born.”
As bad as the English were, the French were much worse. (to the peasants, that is.)
Completely agree.
English law still required "perpetual allegiance" so unless you were planing on settling in English held territory, It wouldn't seem likely that the crown would tolerate it's subjects avoiding it's beck and call, or worse, failing to pay taxes to it. Look at how well they treated the Colonies, and those WERE English held territories. :)
And once again, out ancestors did not revolt because they disliked the right of common law, they revolted because they were denied those rights.
Sheesh - of course Congress didn't presume common law would always be in effect in all things - they were quite specific in some areas - outlawing bills of attainder, for example. So yes, there was selectivity, but many terms in the Constitution are taken directly from common law. "Natural born" is one of them. Again I remind you of President Reagan's attorney general writing that we follow jus soli..
In case you don't realize this, some colonies were established and had laws/charters dating from before the 1708 English statute making those born of English citizens abroad natural born.
No, actually I never said nor implied this. Vattel is simply recognized by the SCOTUS as one of the best writers on the subject. I was actually talking about the law of nations being a set of universal principles and used the Blackstone quote to support that comment. No surprise that you try to come up with a nonsense deflection.
You keep trying to say that Vattel = common law, but it doesn't.
Are you really this dense?? The Blackstone quote says it for me: "the law of nations ... is here adopted in its full extent by the common law ..." This shows that English common law was based in large part on the law of nations, although it obviously goes well beyond the law of nations in several aspects, but the central point that I made is very clear and fully supported.
My response points up some of your errors, which you don't want to acknowledge. I guess to you, that's "missing the point."
No, it's called being honest. You should try it. You've constructed strawmen and mischaracterizations of my posts ... intentional distortions and/or complete fabrications. The errors are all yours.
Focus, lurky. We're talking specifically about citizenship law and how the common law was NOT respected. This was but one example directly related to that.
So yes, there was selectivity, but many terms in the Constitution are taken directly from common law. "Natural born" is one of them.
The term is broader and more generic than just a common law term. Online etymology says the term was attested back to the 1580s, which coincides nicely with a book published in 1598 about a Dutch explorer, named Jan Huyghen van Linschoten, who described natives in the East Indies as "natural borne."
Now it is not so straightlie looked unto, but they may goe in all places of the towne, & within the Hand, but not about it, to view the coast: which notwithstanding was graunted unto us, by the Governor himself, who lent us his horses, to ryde about, and gave us leave to see all the fortes, which at this time is not permitted to the naturall borne Handera, neyther are they so much credited.Again I remind you of President Reagan's attorney general writing that we follow jus soli.
link
Reagan's attorney is or was entitled to an opinion. It matters not because the Supreme Court is going to look to its own precedents, not Edwin Meese's writings.
In case you don't realize this, some colonies were established and had laws/charters dating from before the 1708 English statute making those born of English citizens abroad natural born.
... except that they weren't presumed to carry over into U.S. law as was general citizenship of being born of "ourselves and our posterity." You're making my case for me. Thanks.
Since you trust Blackstone as a source, let's see what he had to say about "natural born" and "common law"
So Blackstone schools you on the common law and "natural born." He is very clear here as to what common law says, and it does not agree with the opinions of De Vattel. As you say, read it, understand it, learn from it.The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. ...
When I say, that an alien is one who is born out of the king's dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, for the naturalization of children of his majesty's English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born...
The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.
Yup, the Supreme Court is going to look at WKA, Rogers v. Bellei, etc.
To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.
IOW, the universal law of nations that was incorporated into the common law was NOT a limitation on common law. Therefore, it does NOT disagree with Vattel, it simply shows that statutory law was augmented beyond the natural law that formed the foundation of common law.
Further, let's look at how Blackstone defines natural-born in relation to the children of aliens:
The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.
IOW, Blackstone is clearly saying that this is an exception in England (which obviously goes beyond the natural law). Further, Blackstone says "generally speaking" as in not ALL children of aliens. One of the exceptions is explained in the passage on denizenship:
A denizen is an alien born, but who has obtained ex donatione regis letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. He may take lands by purchase or devise, which an alien may not; but cannot take by inheritance: for his parent, through whom he must claim, being an alien had no inheritable blood, and therefore could convey none to the son. And, upon a like defect of hereditary blood, the issue of a denizen, born before denization, cannot inherit to him; but his issue born after, may.
The "inheritable blood" is what prevents the child of an alien from being a natural-born subject. It only becomes inheritable AFTER an alien goes through denization. Blackstone makes distinctions that are not too dissimilar from what happens in the U.S. when the children of aliens who are naturalized will the become naturalized.
There is also a clear principle explained by Blackstone that was completely rejected in the United States relating to natural-born and common law:
For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due.
In Wong Kim Ark, they clearly explain what the American position was on putting off "natural allegiance."
by our law, as solemnly declared by Congress, "the right of expatriation is a natural and inherent right of all people," andany declaration, instruction, opinion, order or direction of any officer of the United States which denies, restricts, impairs or questions the right of expatriation, is declared inconsistent with the fundamental principles of the Republic.
Now, why are we to presume that common law would comprehensively define citizenship in this country when we firmly rejected the CORE principle that was used by Blackstone to define "natural-born"??
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