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 ...
Also, at the time of Jeffersons Death, nearly every State had an official, ENDORSED religion.
The liberals have completely distorted the 1st Amendment, partly through the tax code.
The fact is, the prohibitions on the Church in this country are the same as those on the Red Cross or on the YMCA: Non profits can't endorse!
That is tax law, not the 1st Amendment!
Anyway, Jefferson had his strong points, but what he said has been greatly distorted. Though Jefferson had trouble with organized religion, he was not an atheist, and Jefferson would be shocked to see the government so hostile to religion, as it is today.
The fact is, the prohibitions on the Church in this country are the same as those on the Red Cross or on the YMCA: Non profits can't endorse!
The point of Jefferson's letter was not prohibitions on the church, it was prohibitions on the government as regards "church." The liberal abuses that you suggest show up as calling schools "government," and student prayers "church," and therefore Jefferson's "wall of separation between church and state" becomes teachers stopping student prayer in schools.
Anyway, we're straying from my original intent of citing Jefferson. I cited Jefferson as a non-Framer whose words were used to interpret the Constitution, in order to juxtapose non-Framer Paine's words in The Rights Of Man to interpret the Constitution. Paine wrote his words in 1791, Jefferson's was in 1801. Both were close enough to ratification to be considered contemporary.
You cited another quote from Madison in 1789, but Madison was referring to citizenship in general, which is not in dispute. It is the narrower natural born citizenship that is in question. Since the Constitution uses the two phrases separately, we must accept that a stricter interpretation was intended for the natural born citizen.
Your citation of 1795 is in reference to the state of Connecticutt, where the quote states that the children of non-citizens are considered as natural born as the children of citizens of Connecticutt. Since you just pointed out that the states had state-endorsed religions where the federal government was prohibited from sanctioning a single religion, it would be illogical to then argue that state-endorsed natural born citizen defines the federal definition of natural born citizen.
Your quote of 1805 is of general citizenship, which again, is not in dispute. It is irrelevant to natural born citizenship.The same for the quotes of 1806 and 1813, citizenship which is not disputed, but not relevant to natural born citizenship.
1826 #1 tries to equate "subject" with "citizen." There have been past discussions on the appropriateness if this analogy, so since this transfer of concept is in doubt, I won't rely on this one now.
1826 #2 is interesting. To repeat your citation:
“As the President is required to be a native citizen of the United States…. Natives are all persons born within the jurisdiction and allegiance of the United States.” James Kent, COMMENTARIES ON AMERICAN LAW (1826)
Let me refer you to this post from rxsid that shows the definitions of "native" and "natural" from 1789. This citation may be where we see the split in definitions between "natural" and "native," where the word "native" is defined and then substituted as if it were the word "natural" as used in the Constitution.
As an aside, I recently read some Paine artifacts from 1807 where I learned that he tried to vote in a local New York election, but was turned away by partisan poll inspectors who said that he was not a citizen. Paine contested this, threatening lawsuits, and wrote a letter to Vice President George Clinton to vouch for Paine's role in the American revolution. Paine asked Clinton to attest to the role that Paine's Common Sense and The American Crisis had on motivating the country to support independence, and then to stick with it during the hardships at Valley Forge.
Paine asked Clinton to do this because, as Paine wrote, "As it is a new generation that has risen up since the declaration of independence, they know nothing of what political state of the country was at the time of the pamphlet Common Sense appeared; and besides this there are but few of the old standers left, and none that I know of in this city." Paine continued, "I wish you would write a letter to some person stating from your own knowledge what the condition of those times were and the effect which the work Common Sense and the several numbers of the Crisis had upon the country."
I point this out to show that as early as 1807, people in New York were already forgetting the facts of what occurred just 30 years earlier.
How long after ratification in 1789 would it be before the details beyond what was in the Federalist Papers were lost to history?
-PJ
What matters is the text of the Constitution, not simply intent. We can use intent to help understand the text as written. We can also use operative historical meanings in parallel contexts when we do not know what a word or phrase means. However, Mr Madison in your passage does not use the term “natural born”. He may use it elsewhere, but you did not cite it. Do you have such a reference?
We do have the text of the Constitution drawing a distinction between “natural-born” and all other “citizens at the time of the adoption of this constitution”. The latter would include native born (not natural born) and others naturalized by processes in effect then. All the citizens of the latter class “alive at the adoption” are dead. That leaves the remaining class — natural-born — as those only eligible.
fair enough but the fact remains that a judge has, on the record, commented on his pleading skills.
A google search pretty much repeats the result.
thanks for pointing out that source’s issues.
Very few, if any, qualified legal authorities agree with you.
Why is that?
Qualified legal authorities will tell you that “Native Born” and “Natural Born” mean the same thing, and that it was not necessary to distinguish “distinctions without a difference”.
Both of Rubio’s parents had green cards, and were fully subject to the laws (e.g., taxation) of the USA "
Zatso?
His parents were "fully subject to the laws of the USA?"
As in, they were subject to a draft into the U.S. Military? I'm sure the country's of their citizenship would state otherwise.
How about Jury Duty? Where they subject to being called in for such civic duty? Last I checked, being a resident green card holder specifically exempts one from Jury Duty, for obvious reasons.
In fact, looking at the latest Jury Summons I received, it specifically lists under:
DISQUALIFICATION AFFIDAVIT____A. "I AM NOT A CITIZEN of the United States."
There it is, the very first disqualifier! Not a U.S. Citizen...as in "Green Card" holder.
So no...his parents were most definitely NOT fully subject to the laws of the United States BECAUSE they were NOT citizens.
Rather than refuting my point, you've reinforced it!
This is what the Framers thought of ECL:
James Madison in a letter to Jefferson, Jan 18, 1800, states that admitting the common law as legal federal law of the United States "would confer on the judicial department a discretion little short of a legislative power" since federal courts would "decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States" and thus would "erect them [judges] into legislators"
Thomas Jefferson in a letter to Edmund Randolph, August 18, 1799, wrote, "Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force and cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of un-given powers have been in the detail. The bank law, the treaty doctrine, the sedition act, alien act, the undertaking to change the State laws of evidence in the State courts by certain parts of the stamp act, &c. &c. have been solitary, unconsequential, timid things, in comparison with the audacious, barefaced and sweeping pretension to a system of law for the United States, without the adoption of their legislature, and so infinitively beyond their power to adopt."
You missed the point entirely. The court said the legal LANGUAGE in the Constitution had to be interpreted in light of English Common law, because that was the basis for the language of law at the time. The term ‘natural born subject’ had a well known meaning in common law. The Founders used it interchangeably with ‘natural born citizen’ - or at least the Mass legislature which approved the Constitution did. Thus the common law meaning of NBS tells us what the Founders had in mind when they used the term NBC.
If you want to know what the Founders had in mind when they used a legal term, you need to know what the legal term meant at the time they wrote it. That ought to be obvious!
The Declaration of Independence does not mention English common law, mentioning instead the "Laws of Nature and of Nature's God" and "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights"
The United States is founded upon natural law.
English common law originates in the rule of a king, that rule being "common" throughout the kingdom.
Royalty is antithetical to our republic and its foundation in natural law.
I note that you again reinforce the point that ECL must be because a judge said so. Relying on a judge to "strengthen" your argument rather than refuting a single point makes the case for me.
Upthread in post 295 you cite Minor v. Happersett in an attempt to bolster your position.
Minor v. Happersett, in relevant part - “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.”
SCOTUS recognized doubts that native birth in US was sufficient to even make a citizen, never mind a natural born citizen. English common law holds no doubts that native birth suffices to make a natural born subject, therefor it could not have been English common law being referred to.
Natural born citizen = The Posterity of We the People.
Only the Posterity of We the People can become President of the United States.
-PJ
If you want to know what the Founders meant by a legal term, you need to know what the legal term meant at the time.
If birthers cannot figure that out, then they will have to go on being losers...
“Upthread in post 295 you cite Minor v. Happersett in an attempt to bolster your position.”
No. I cited Wong Kim Ark. It referenced Minor to show the Constitution’s LANGUAGE “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]”
Minor said:
“For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words “subject,” “inhabitant,” and “citizen” have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more.
To determine, then, who were citizens of the United States before the adoption of the amendment it is necessary to ascertain what persons originally associated themselves together to form the nation, and what were afterwards admitted to membership.
Looking at the Constitution itself we find that it was ordained and established by “the people of the United States,” [n3] and then going further back, we find that these were the people of the several States that had before dissolved the political bands which connected them with Great Britain, and assumed a separate and equal station among the powers of the earth, [n4] and that had by Articles of Confederation and Perpetual Union, in which they took the name of “the United States of America,” entered into a firm league of [p167] friendship with each other for their common defence, the security of their liberties and their mutual and general welfare, binding themselves to assist each other against all force offered to or attack made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever. [n5]
Whoever, then, was one of the people of either of these States when the Constitution of the United States was adopted, became ipso facto a citizen — a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was, consequently, one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were.
Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides [n6] that “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” [n7] and that Congress shall have power “to establish a uniform rule of naturalization.” Thus new citizens may be born or they may be created by naturalization.
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [p168] parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words “all children” are certainly as comprehensive, when used in this connection, as “all persons,” and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.”
Notice that Minor agreed that subject and citizen “designate by a title the person and the relation he bears to the nation. For this purpose the words “subject,” “inhabitant,” and “citizen” have been used, and the choice between them is sometimes made to depend upon the form of the government.”
It also says “Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization.”
Is a person born of alien parents a citizen? Minor left the question open:
“For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”
Thus the WKA decision was possible. If Minor had made the decision years earlier, there would have been no case for the Court to decide in 1898.
Rubio is a citizen by birth. If he wasn’t, he would need to be naturalized. Since he is, he is a “natural born citizen” - as Minor agrees, since there are only two ways to add to the citizen body...
Ahhh, “birthers”.
We’re done here.
The SCOTUS has had several fair chances to hear this matter, and has shied away from the opportunity and their responsibility.
I agree with Fred, the deep voiced old sleepyhead, on one thing. That is, let's concentrate on debugging the WH and sending Obama down the road. Perhaps then The SCOTUs will feel free enough to tackle the issues of citizenship in general, and NBC in particular.
In the meantime, RINO Rubio is doing fine in the Senate. Jindal is Governor of LA and is reputed by many to be doing a fine job. Leave them both in place.
Get me West as VP. We need mental toughness on the ticket. Hell, he might even get us 12-15% of the Black Vote and that alone would be enough to sink the Mombasa MF.
And by following it, Romney would avoid what will certainly be a fight with a significant portion of his base of support.
He's not very charismatic, but Romney seems to be pragmatic enough to not want that fight during his campaign.
No doubt he knows that a lot of people will stay home rather than vote for him, but if he picks someone who's not the purest possible definition of eligible, such as Rubio or Jindal, they won't be staying home.
They'll be motivated to fight against him the same as they are against obama, and that's not a good way to start his honeymoon...assuming he could win.
Thanks for your posts on this thread. They have been concise, supported and extremely informative. Nicely done!
Quite the diplomat, GBA. Are you available as Secretary of State after the election?
Certainly a lot smoother than my "I can't tell if The Mormon Milquestoast is among the quick ..."
Can anyone born a U.S. citizen be properly called an alien or foreigner?
I'm only diplomatic at the keyboard, but an azhole everywhere else. Just ask anybody...
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