Posted on 04/27/2010 1:53:06 PM PDT by Jack Black
Article 1, Section 8, Clause 4 (Citizenship)
Document 1
William Blackstone, Commentaries 1:354, 357--58, 361--62
1765 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. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.
. . . . .
Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth. For, immediately upon their birth, they are under the king's protection; at a time too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. 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. Indeed the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands, by which he is connected to his natural prince.
Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king's dominion and protection: and it ceases, the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only: and that for this reason, evidently founded upon the nature of government; that allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean himself faithfully. As therefore the prince is always under a constant tie to protect his natural-born subjects, at all times and in all countries, for this reason their allegiance due to him is equally universal and permanent. But, on the other hand, as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire.
. . . . .
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. Yet the children of the king's embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England's allegiance, represented by his father, the embassador. 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.
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.
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. A denizen is not excused from paying the alien's duty, and some other mercantile burthens. And no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grant from the crown.
Naturalization cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king's ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, &c. No bill for naturalization can be received in either house of parliament, without such disabling clause in it. Neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the Lord's supper within one month before the bringing in of the bill; and unless he also takes the oaths of allegiance and supremacy in the presence of the parliament.
So that would bring up Hillary as Sec of State, correct?
At the very least, he's a capitalist. Given the first year of Obama, I'll take that any day.
Interesting but I wonder, if the Founders used Blackstone’s why they didn’t use the term “Natural Born Subject?”
Is it is because a subject owes alliegance to a person (The King/Queen)? Some European Monarchs, including British monarchs, were children of Monarchs of other nations. Conflicting loyalities seemed to be a fact of life for European Kings...
The United States has citizens who owe their alliegence to the Constitution, and the Nation. Given the Founders concern over the undivided alliegence they wanted embodied in the Office of the President, and the changeable alliegence that Blackstone’s ascribes to an alien born in country, I doubt very seriously that the Founders used Blackstone for a model when writting the Requirements for the Office of the President.
The fact that the Founders were as familiar with Vittals “Law of Nations” as they were with Blackstone’s, and they used Vittals terminology tells me that while Blackstones may have been counsulted, the Founders prefered Vittals reasoning and definitions....In essence Natural Born Citizen does not equal Natural Born Subject.
Coupled with T Jefferson teaching a course at William and Mary teaching “Law of Nation” and the USSC using either an exact or paraphrased quotation of Vittals definition of a Natural Born Citizen in their citizenship decisions, I find the probability of Blackstone’s being relevant to the term Natural Born Citizen approaching zero to the point of it’s being non existent.......
Dems would be neutered, anyway. So whatever Dem it might be would be declawed.
On the bright side, a proper ruling from Scotus would preclude the Kenyan from the ballot in 2012."
First, of course SCOTUS can't "kick" him out. They don't enforce the law.
However, how would that work if they find him ineligible for 2012, yet somehow eligible now? Or, are you suggesting that after finding him ineligible (for 2012), that he would simply remain in office now?
Once the "proper" case gets to them (SCOTUS), they would be hard pressed to find someone born a subject to the crown of her majesty the Queen of England to be considered a Natural Born Citizen as known and intended by the framers (& subsequently reaffirmed by founder Ramsay, the dicta of 5 SCOTUS cases and the author of the 14th Amendment).
Born in country, to citizen parentS.
If SCOTUS finds him ineligible, and by that time there is an R majority, I would assume they’d get him out. Impeachment’s too good for him, since he isn’t a real president anyway. But maybe they’d do that.
A citizen is a member of a state or nation who owes allegiance to its government and is entitled to its protection.
Using the word citizen implies that the members of a community have rights and duties and the opportunity to participate in their governance.
The Founders wouldn't use the word "subject" to refer to their fellow citizens.
Blackstone was more widely known than Vattel in the colonies.
The Founders, who got their legal systeme from Britain through Blackstone, were more likely to follow the more open British rules of citizenship than the closed continental rule.
It is uncharted territory to be sure, and probably one reason the Courts are being cautious in allowing any suits going forward. The case, when it arrives, will become a case of Constitutional Crisis proportion......with prescedent setting ramifications......
Although the Constitution does address the situation of having a President elect not qualifying, the way in which it is written leaves one to believe that it assumes that unqualified person has not assumed the Office when that determination was made.
Removal of a sitting President because he did not meet Presidential eligibilty requirements does not require the political will as it does in the case of Impeachment. A decision by the Court is very much different that a vote in the House of Representatives and Trial in the Senate....
Enforcing such a decision is quite another matter....ask Andrew Jackson, I’m sure he has some perspective on that question....I can see Obama having a similiar attitude towards an adverse Court decision regarding his election as President......LOLOLOLOL
The Constitution (nor any Law I am aware of) does not proscribe any punishment for being held ineligible to hold the Office of the President other than mere removal from Office....and the embarrasment of walking, suitcase in hand, down Pennsylvania Avenue...........
Coupled with T Jefferson teaching a course at William and Mary teaching “Law of Nation” and the USSC using either an exact or paraphrased quotation of Vittals definition of a Natural Born Citizen in their citizenship decisions, I find the probability of Blackstone’s being relevant to the term Natural Born Citizen approaching zero to the point of it’s being non existent
Completely agree. They only way they get Blacktone to work on this term, is to make citizens of a Republic equal to a subject of a crown. Otherwise, they can't make the definition for a NBS fit a NBC...if they are not equal.
The framers didn't need to make that impossible equation work when someone else (that they relied upon) defined the term already. Vattel. In addition to the 5 SCOTUS cases mentioned the same definition (as Vattel) in their dicta, we have founder Ramsay reaffirming the same definition as well as the framer of the 14th Amemdment John Bingham reaffirming the same definition.
“The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.”
Sorry, Jack: here we’re born as citizens, sovereigns of this nation, and not as subjects under a monarch as in England.
In a recent Illinois Public Law & Legal Theory written by Professor Lawrence B Solum of the U of IL, College of Law, Chicago, Solum explains why the English common law definition of ‘natural born subject’ was not the definition adopted by the Framers for the Sovereign citizens of the United States of America.
[Blackstone Commentaries (1765): 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. Yet the children of the king’s ambassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England’s allegiance, represented by his father, the ambassador. 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;...]
[F.E. Edwards, Natural Born British Subjects at Common Law, 14 Journal of the Society of Comparative Legislation 314 (1914): The pro- position that British Protectorates, and consequently any less interest of the Crown, should be excluded from our definition of the King’s protection, is supported by Sir William Anson, who declares that birth within such a region is not sufficient to found a claim for British natural-born status. The real test of whether a given territory is part of the British Dominions is that it must have passed openly, completely, and unequivocally into the possession of the Crown.]
[Solum: If the American conception of “natural born citizen” were equivalent to the English notion of a “natural born subject,” then it could be argued that only persons born on American soil to American parents would have qualified. This might lead to the conclusion that McCain would not be a constitutional natural-born citizen, because the Panama Canal Zone was not the sovereign territory of the United States, but was instead merely subject to its administrative control.
The language of the Constitution recognizes a distinction between the terms “citizen” and “subject”. For example, in Article III Section 2, which confers “judicial power” on the federal courts, “citizens” of the several states are differentiated from “citizens” or “subjects” of foreign states—corresponding to the distinction between diversity and alienage jurisdiction. In the framing era, these two terms reflected two distinct theories of the relationship between individual members of a political community and the state.
In feudal or monarchical constitutional theory, individuals were the subjects of a monarch or sovereign, but the republican constitutional theory of the revolutionary and post revolutionary period conceived of the individual as a citizen and assigned sovereignty to the people.
The distinction between citizens and subjects is reflected in Chief Justice John Jay’s opinion in Chisholm v. Georgia, the first great constitutional case decided after the ratification of the Constitution of 1789:
[T]he sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State…
[A]t the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects…]
As you can see, in England there are two very distinct meanings of ’natural born’ subject. In one hand there is the broader view & in the other there is the view of the laws of nations. What the liberal progressive constitutionalists use is the broader view and thus disregard the fact that at some point, even England used the law of nations. The Framers also knew of Englands use of the law of nations and were very aware of its importance when establishing a new nation. It has also been proven that the Law of Nations was in the hands of the Framers at the time of the drafting of the Declaration of Independence.
And as pointed out above, please do not come back with the same old lame references to Blackstone & English common law, we know for a fact from the very 1st SCOTUS Justice Washington appointed, a Justice who was only 2nd to Madison in the drafting of the Constitution that the definition for US citizens was not derived from English common law, but on the law of Nations which is the law of nature:
“The law of nature, when applied to states and political societies, receives a new name, that of the law of nations. This law, important in all states, is of peculiar importance in free ones. The States of America are certainly entitled to this dignified appellation…But if the knowledge of the law of nations is greatly useful to those who appoint, it surely must be highly necessary to those who are appointed…As Puffendorff thought that the law of nature and the law of nations were precisely the same, he has not, in his book on these subjects treated of the law of nations separately; but has every where joined it with the law of nature, properly called so…the law of nature is applied to individuals; the law of nations is applied to states.”
Wilson (Supreme Court Justice), in his 1st commentaries, blasts Blackstone’s theory by citing that the definition of ’subject’ per English common law according to Blackstone was not the definition of ‘citizen’ as adopted by the framers of the US Constitution. A ’subject’ is ruled by an all powerful central government/monarchy and the under the new Constitution of the United States, the central government’s power is derived from the people, the citizens.
Wilson also wrote the very 1st SCOTUS decision in Chisolm which is cited to this day as to the powers of the central government. He also was no right-wing conservative where the limits of the central government were concerned. Wilson felt that the Constitution did not go far enough in giving broader powers to those in Washington, but he KNEW the premise of the Constitution and stood behind it in every decision he made, regardless of his political philosophy.
“Blackstone was more widely known than Vattel in the colonies”
We disagree....
Vittal’s writtings were well known and discussed by the “elites” of Colonial America, having been written nearly 35 years before their authorship of the Constitution, thereby giving them long exposure to it. The gentlemen that actually wrote the Constitution were well aware of “Law of Nations.
Thomas Jefferson Taught a course at William and Mary that used Vittals as its Text. The course was taught well into the 19th century and several future USSC Justices sat in the Classes.....
You may be right when speaking of the general colonial population as English Common Law was the Law they lived under.
However the Founders, in establishing a new Nation,
did not merely copy the laws of their former King, and Country. They struck out and used the ideas of the leading political theorists of their time....Vittal being a major player in that areana....
It's much more likely to make Joe, The Plagerist, Biden President. From a Constitutional perspective, the electoral votes for President and Vice President are separte, never mind that the states have tied them together in their manner of selecting electors. Biden is presumably eligible, and as VP, he would at minimum "act" as President (see amendment XX) or become President, depending whether Obama was ruled to have "failed to qualify" or had not been chosen (legitimately) (again amendment XX) or was removed, or resigned, as per Amendment XXV, in the latter case the VP would become President.
Sure Biden was probably complicit, and might be impeached on those grounds. But Pelosi was explicity involved in the fraud, by not certifing BO as eligible, except for Hawaii, where she said he was. I think the latter would keep her out of the oval office quite nicely, and maybe get her a new office, at Club Fed.
I could live with 2 1/2 years of President Plagerist. And so could the Republic.
No because of this, which immediatly peceeded what you quoted:
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.
BHO's father was born in the Queen's ligeance and thus was a natural born subject of said Queen, and thus by the principal above, so was little Barry.
So you are saying someone proven not to be eligible, with that proof/ruling upheld by the Supreme Court, could none the less, be President? With all the powers delgated to that office?
Don't think so. Not eligible has to mean "not President".
Besides, removal is not "punishment". Putting his fraudulent ash in prison, or exhiling him to what his wife says is his homeland, that would be punishment. No one has the right to be President, especialy if they are not eligible under the Constitution.
I could live with Joe too—That and knowing that in a couple of years he would retire back to Delaware and sit in the rocking chair...having done his duty for his country and all of that...
If they rule he is not eligible, then he's not President.
If he's ruled ineligible, there will be 'considerable pressure', for him to get his Ash out of the People's House.
And less than 2 or 3% have even heard of Blackstone, Story, or Vattel.
To them the Constitution is something for the Courts to be concerned with, not their loathsome selves.
Vattel puts it thusly:
217. Children born in the armies of the state.
For the same reasons also, children born out of the country, in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country; for a citizen who is absent with his family, on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.
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