Posted on 07/31/2012 2:58:34 PM PDT by Perdogg
I would like to address an issue that is apparently of concern to a significant number of people. In my “Ask Fred” column, several people have expressed concern (some have been adamant and angry) that Marco Rubio should not be selected as the Vice Presidential nominee because he would not be eligible to be President, if the need arose. They contend that at least one of his parents were required at the time of his birth to have been a citizen for him to fulfill the constitutional requirement of eligibility, even though he was born on American soil.
(Excerpt) Read more at fredthompsonsamerica.com ...
-PJ
That you ignore Blackstone says a great deal about how weak your case is.
More to the point, NONE of your citations really hits the mark in the case at hand, RE: Rubio.
Dicta is not controlling. You do not know how to distinguish controlling facts from non controlling facts and statements by the Court.
“The fact is that these opinions are in the distinct minority. And in the rare instance when a judge has said that a NBC must have parents who are citizens, it has not been part of the decision in the case. Such comments have been gratuitous or “dictum,” as the lawyers say. That is, not necessary to the actual holding in the case.
Previous Court Scenarios
Where the issue has been squarely before a court, the result has been otherwise. In Lynch v Clark, decided in 1844, the issue was the right to inherit. The New York court held that the child, born in the U.S. of British subjects, could inherit because she was a NBC. In 1898 the Supreme Court in U.S. v Wong Kim Ark held the same way. Those cases are still good law today. These courts relied upon , in part, the English common law in deriving the intent of the Founders and pointed out that in England being born on English soil was sufficient for citizenship. The statements of James Madison, for one, make it clear that the Founders had no intention of deviating from the common law in this regard. This is further supported by official opinions of our nation’s Attorney Generals going back several years.
Finally, the 14th Amendment was ratified in 1868, which states, in part: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside.” Reading this together with Article 2 would indicate that the additional “natural born” requirement of Article 2 for a citizen to be eligible to be president meant that being “naturalized” would not suffice. He must be born here.
In 2011 the Congressional Research Service accurately stated, “The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth” …by being born in the United States and under its jurisdiction, even those born to alien parents…”
While the Supreme Court has never directly addressed the question of a specific presidential candidate’s eligibility as a NBC, it is inconceivable that the Court would depose a president who was born on American soil. Some people love to excite and stir us up but we have an election coming up, folks. May I suggest that we resist the temptation to chase every rabbit that comes down the trail and focus, instead, on that?
Fred Thompson
From the Thread Article
Wrong nimrod. LoL. Vattel, who wrote the Law of Nations was the guiding light for the Founders - not Blackstone.
And Blackstone and Vattel do agree on natural born. Read carefully.
"William Blackstone, Commentaries 1:354, 357–58, 361–62
1765
“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, and cannot owe two such allegiances, or serve two masters, at once. ...
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,…might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. "
Tsk tsk... you shouldn't be reading those OBot blogs. They have a tendency to lie to themselves and everyone else.
Dicta is not controlling. You do not know how to distinguish controlling facts from non controlling facts and statements by the Court.
LoL again...
In Minor v. Happersett, the Supreme Court directly construed that US Constitution Natural Born Citizen clause and NOT the 14th Amendment. That's a holding and not dicta.
However, in Wong Kim Ark v. US, Gray cited Blackstone as dicta and construed the 14th Amendment to find Ark only as a citizen.
On the question of Rubio and HIS Natural Born Citizenship status, Blackstone agrees with me.
““Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the allegiance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.. . .”
We don't have to worry about this guy. He is toast. Not enough fraud can be generated to help him out.
Blackstone means aliens born in the England are aliens who not of allegiance to the king and are not natural born subjects until England passed some law, regulation, or statute to make them natural born subjects.
In England natural born subjects included naturalization of aliens as they too were also called natural born subjects.
There is no distinction of natural born subjects in English law between natural born v. naturalized persons.
Has the common law of England been declared to be a part of the law of the United States by the Constitution?
There is in the Constitution no Article, Section, Clause, or anything whatsoever which incorporates the common law of England into the Federal government of the United States.
The common law of England has not been declared to be a part of the law of the United States by the Constitution.
Has there been any Amendment to the Constitution or any legislated Act to incorporate the common law of England into the Federal government of the United States?
There has not been any Amendment or Act incorporating the common law of England into the Federal government of the United States.
Is there in the Constitution any grant to the federal judiciary authority to incorporate other systems of laws of its own choosing?
There is in the Constitution no grant to the federal judiciary authority to incorporate other systems of laws of its own choosing.
Could the common law of England become part of the law of the United States by its being part of the law of each of the states, at the time of the adoption of the Constitution?
Although this would be giving efficacy to the inferior instead of the superior and a direct violation of U.S. Const. art. VI, cl. 2, could it be possible?
The law of each state prior to the adoption of the Constitution consisted of the common law of England, the state constitution, and the acts of the state legislature.
The common law of England then was only one of three pillars on which the law of each state was built. It was also the weakest of the three; because it ceased to have any efficacy as law as soon as it was clearly contradicted by either of the others.
If the common law became a part of the law of the United States, because it was part of the law of the individual state, the other two parts of the law of those states must also become a part of the law of the United States, and for the same reason.
But it may be said that these other two parts of the law of each state were dissimilar in the different states, and therefore could not become a part of the law of the United States; whereas the common law of England, in every state being the same, it might become the common law of the United States.
Is the common law of England in every state the same?
The acts of the British parliament are in force in the different states up to different periods; in some to the reign of one king, in others to that of a different king.
Thus the common law of England would be different in these two states.
But the great difference which has been made in the common law in the different states, has proceeded from the changes which have been made in it, by the acts of all the legislatures of the different states, from the time of their first settlement.
Not only is the common law of England different among the states, each state legislature has altered it in different ways; thus the common law of the various states is in no way uniform.
The common law being materially different in all the sates, how can there be any common law in the United States? How shall it be determined which of the states shall be considered as the standard, so far as to make their common law, the common law of the United States? Shall it be a majority of the states; or shall it be those states which contain a majority of the people of the United States? &c &c
Incorporation of the common law into the Federal govt is impracticable. Further, whatever species of the common law of England extant in the law or Constitution of the several states at the time of the Adoption – or at any time – are by U.S. Const. art. VI, cl. 2 prohibited from incorporation into the Federal government.
Therefor, in no way can the Federal govt. be said to be based on, or to have incorporated, the common law of England.
The jurisdiction of Federal courts is defined by the Constitution. Federal judicial reliance on the common law of England is a dangerous usurpation and a direct subversion of the fundamental principle of separation of powers. Any incorporation of English common law is not a Judicial power, it is a power of the Legislature.
This judicial myth of the common law of England being a part of federal law is dangerous. Federal court judges misconstrue the doctrine of stare decisis mistakenly believing that the common law of England actually is incorporated into federal law since a prior court said so.
A court can not establish a new grant of power to itself!
The unsanctioned assumption of power not granted does not establish precedent in the sense of stare decisis. Stare decisis: “to stand by things decided” not “to stand by powers self-granted”.
English common law is not a part of our national law, any Federal judge’s claim notwithstanding.
This terribly mistaken idea gained currency circa 1845 and O. W. Holmes championed it. The border insecurities, the bankrupting of our municipalities and hospitals, corruption and dilution of citizens' votes, etc, are in no small measure symptoms of the “anchor baby” crisis birthed by Justice Gray’s reliance on this alien system of law.
- – - -
Further explanation as to why English common law can not be the basis of the Federal govt. can be found at the Library of Congress:
http://memory.loc.gov/cgi-bin/query/r?ammem/fawbib:@field%28DOCID+@lit%28bbf0081%29%29
The explanation is found in the Appendix to “Correspondence between George Nicholas Esq. of Kentucky, and the Hon. Robert G. Harper of South Carolina, on the subject of the Alien and Sedition Laws, 1798″ The Appendix is titled, “Observations of Judge Addisons Charge to the Grand Jury On the Liberty-of-the-Press”
The relevant pages of the original document, as well as a transcript from those images, is available at scribd: http://www.scribd.com/doc/89761472/
"36 Madison's Debates in Federal Convention
In a word; the two extremes before us are a perfect separation & a perfect incorporation, of The two the 13 States. In the first case they would be extremes, independent nations subject to no law, but the law of nations. In the last, they would be mere counties of one entire republic, subject to one common law. 1 "
Law of Nations and subject to one common law. Here's a hint for you, Madison is NOT speaking about English Common Law.
Thanks for the back-story.
The very first amendment to that new Constitution did incorporate the Bill Of Rights. Those rights were largely the rights of an Englishman. Therefore, to the very limited extent that English common law ever existed in any overarching form in the new nation under the Constitution, it is embodied in our First Amendment rights. All else in the Constitution overturned the common law, as well it should, as the new nation sought to separate itself from being bound by the very common law that so many persist in claiming as guiding principal for original intent.
“In every case, they would vote that I am kicking your ass on the legal arguments.”
Ha ha ha ha ha ha ha ha ha!
Funniest thing I’ve read all day. Kansas hasn’t even countered a single argument. His only argument is “People of high import agree with me.”. Ha ha ha.
What a joke this guy is. You hop on every thread to protect Rubio. I hope you have another job because you suck at this!
I’ve never even seen DiogenesLamp’s postings before, but you are getting taken to the woodshed by him and almost everyone here. Ha ha ha.
Your replies are so weak and funny, that you couldn’t possibly be real. I’m guessing you either a DU’er or a member of the Legion of Zero looking to have some fun getting folks riled up. At least I hope you are....ha ha.
Ha ha ha. Keep ‘EM coming. If it hurts your brain too much, you can just copy and paste some of your previous postings since you have yet to advance beyond your Stewart Smalley “people like me” argument. Ha ha ha.
“Have you ever won, in a Court Room?
I have, nearly a dozen times, on all types of cases, and I am not even an attorney.”
Come on now! Junior high mock trial doesn’t count....especially since you were going against young kids. Ha ha ha!
According to the U S Supreme Court:
“The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. [p655]”
The point was not that English common law controlled US law, but that it formed the language used by the Founders. To know what the Founders intended, you have to know the legal language they used.
NBC” and “natural born subject” were used interchangeably by the Mass legislature that ratified the Constitution. Thus a rational person could conclude that NBC & NBS had interchangeable meanings in the eyes of those who approved the Constitution, and that the common law meaning of NBS drove the understanding the Founders had for NBC.
That is why birthers lose in every case. They defy not just the courts, but reason itself.
Did a natural born subject have the right to expatriate, or was he held to be in perpetual allegiance, Mr. Rogers? And also, ask yourself the same question regarding a natural born citizen.
Much of what birthers post works against them, but they dont get it.
They can not find, anywhere, anyone with authority who actually agrees with them.
It does not matter, they invent “case law” out of thin air, which does not support them, and often contradicts them, and run with it.
The whole world is made up of “stupid” people like me, and the 1,000 or so radical birthers are the ONLY people with any “wisdom” in their eyes.
A NBS who came to America had the right to become a US citizen. Remember the War of 1812?
First, Jefferson’s letter to the Danbury Baptists is NOT “controlling” as you state, on 1st Amendment or Church/State issues. Next?
Why do you say this, given that the phrase "church and state" does not exist in the Constitution, and the only place that "wall of separation between Church and State" comes from is Jefferson's letter? Clearly, Jefferson's letter is the source of this concept, which has been what has survived for over 200 years.
Even this Wikipedia artcle on the Establishment Clause cites Jefferson's letter. Do you have another source for the common interpretation of the First Amendment Establishment clause?
You are making a HUGE leap, with your weak arguments.
Given that this is in reply to my quoting the Preamble to the Constitution, I will say that my argument is the strongest of all, because it relies SOLELY on the Constitution, and does not need outside support to interpret it. Since the Article VI Supremacy clause says that "any Thing in the Constitution" is supreme Law of the Land, and the Preamble is a Thing in the Constitution, it should be given deference to interpretations that rely on outside support.
I have posted before that I think that SCOTUS was wrong in Minor when they said that they had to look elsewhere for the definition of natural born citizen, because the definition was right there in front of them in the Preamble. Sometimes, when one over-thinks things, one becomes blind to the obvious.
The Constitution was ordained and established to preserve liberty for the people and their posterity. Only the posterity are eligible to be the head of the country in order to secure its preservation.
-PJ
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