Posted on 05/08/2013 8:03:24 AM PDT by SeekAndFind
In one of my first essays for NRO back in 2005 (“Are You an Originalist?”), I selected the Constitution’s “natural born Citizen” criterion for eligibility to be president—a provision that then seemed at the time to be beyond the distorting effects of political bias—to illustrate that everyone intuitively recognizes the common-sense principle at the heart of the interpretive methodology of originalism: namely, that the meaning of a constitutional provision is to be determined in accordance with the meaning that it bore at the time that it was adopted. The public debate in 2008 over whether John McCain, having been born in 1936 in the Panama Canal Zone to parents who were American citizens, was a “natural born Citizen” ratified my point, as virtually all commentators purported to undertake an originalist inquiry.
I hadn’t seen any reason to comment on the left-wing “birther” attacks on Senator Ted Cruz’s eligibility to be president. Cruz was born in Canada in 1970 to a mother who was then an American citizen. Under the laws then in place, he was an American citizen by virtue of his birth.
As this Congressional Research Service report sums it up (p. 25; see also pp. 16-21), the “overwhelming evidence of historical intent, general understandings [in 18th-century America], and common law principles underlying American jurisprudence thus indicate[s] that the most reasonable interpretation of ‘natural born’ citizens would include those who are considered U.S. citizens ‘at birth’ or ‘by birth,’ … under existing federal statutory law incorporating long-standing concepts of jus sanguinis, the law of descent.” In other words, there is strong originalist material to support the semantic signal that “natural born Citizen” identifies someone who is a citizen by virtue of the circumstances of his birth—as distinguished from someone who is naturalized later in life as a citizen. (In McCain’s case, the dispute turned on whether he was indeed an American citizen by virtue of his birth—or was instead naturalized a citizen under a law enacted when he was eleven months old. For more, see law professor Gabriel Chin’s lengthy article making the case against McCain.)
To my surprise, the New Republic’s Noam Scheiber tries to argue that Cruz’s embrace of constitutional originalism somehow means that Cruz can’t determine that he is a “natural born Citizen.” But the only evidence that Scheiber offers for this position is the assertion (which Scheiber mischaracterizes as a concession) by a non-originalist law professor in an MSNBC interview that the proposition that a person is a “natural born Citizen” if he is a citizen by virtue of his birth “isn’t really clear cut if you limit yourself to the actual wording of the Constitution” (that’s Scheiber’s paraphrase) but instead depends on “how our understandings have evolved over time.” Scheiber both overlooks the powerful originalist evidence in support of Cruz’s status as a “natural born Citizen” and misunderstands how originalist methodology operates. (In public-meaning originalism, you don’t “limit yourself to the actual wording of the Constitution,” and you don’t find yourself lost simply because the Constitution “never defines what ‘natural born’ means.” You instead look to the public meaning of the term at the time it was adopted.)
My point here isn’t to contend that the originalist evidence points entirely in one direction. As law professor Michael Ramsey observes in a post that I’ve run across while finalizing this post (a post that also takes issue with Scheiber), there are originalist scholars who don’t “find the argument entirely conclusive.” But Scheiber’s piece is a cheap whack at Cruz as well as a cheap whack at originalism.
A citizen then—to draw his description as one of the people—I deem him, who acts a personal or a represented part in the legislation of his country. He has other rights; but his legislative I consider as his characteristic right. In this view, a citizen of the United States is he, who is a citizen of at least some one state in the Union: for the members of the house of representatives in the national legislature are chosen, in each state, by electors, who, in that state, have the qualifications requisite for electors of the most numerous branch of the state legislature.c In this view, a citizen of Pennsylvania is he, who has resided in the state two years; and, within that time, has paid a state or county tax: or he is between the ages of twenty one and twenty two years, and the son of a citizen.Only the sons of freeholders were citizens? Such was never the claim.
What this demonstrates, which you fail to understand and so spectacularly misconstrued, is that a son of a citizen is a citizen without operation of statute.
The son of an alien naturalizes upon the naturalization of the father, by operation of statute.
According to the above, you could become a naturalized citizen of Pennsylvania by residing in the state two years and paying a state or county tax.
The son of a citizen has no such requirement, no statutes, no particular action, but he is a citizen. Such is a natural born citizen.
” According to the above, you could become a naturalized citizen of Pennsylvania by residing in the state two years and paying a state or county tax.
The son of a citizen has no such requirement, no statutes, no particular action, but he is a citizen. Such is a natural born citizen.”
State laws on state citizenship varied, but US law - that which applies today, other than residency requirements for voting in a state - had those born in the US born citizens, regardless of parentage. Those born to citizen abroad have also regularly been born citizens, and do not undergo naturalization. Naturalization is what the two kids I adopted went thru, to become US citizens well after their births.
As for James Wilson:
“Between a subject naturalized and a subject natural born, the distinction is merely nominal as to private rights: it applies only to the manner, in which those rights are devolved. On one they are devolved by his birth: on the other, by the consent of the nation, expressed in the parliament. With regard, however, to publick rights, the case is widely different. By statutes made even since the revolution, no subject naturalized can be a member of parliament; and no bill for naturalization can be received in either house of parliament, without such a disabling clause...
...What a very different spirit animates and pervades her American sons! Indeed it is proper that it should do so. The insulated policy of the British nation would as ill befit the expansive genius of our institutions, as the hills, the ponds, and the rivulets, which are scattered over their island, would adequately represent the mountains, and rivers, and lakes of the United States...
...In a former lecture,z we have seen how easily the essential rights of citizenship can be acquired in the United States, and in every state of the Union. Let us now see, how liberally the doors are thrown open for admission to the publick trusts and honours, as well as to the private rights and privileges, of our country.
At the end of two years from the time, at which a foreigner “of good character”—for numbers without virtue are not our object—a former mode of “better peopling his majesty’s plantations” is now fallen into disrepute—at the end of two years from the time,a at which a foreigner of good character sets his foot in this land of generosity as well as freedom, he is entitled to become, if he chooses,b a citizen of our national government. At the end of seven years, a term not longer than that which is frequently required for an apprenticeship to the plainest trade, the citizen may become legislator; for he is eligible as a representative in the congress of the United States.c After having, in that capacity, undergone the honourable but short probationship of two years, the doors even of our national senate are opened as far as to receive him.”
Note there is only one office not open to a naturalized citizen - the Presidency. That demonstrates that the NBC clause is to prevent naturalized citizens from being President. And as the alternative to naturalized citizens, there is, in the US Constitution, natural born citizens. Those citizens not naturalized, but citizens from birth, are in the second category, in opposition to the definition of the first.
Which does not create a natural born citizen as understood by the Founders.
You have previously relied on English common law. For example in Post 153:
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 common law of this country, as well as of England."Born in the allegiance of the United States". Allegiance is political not territorial.
Sen. Trumbull, framer of 14th Amendment:
The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof." What do we mean by "complete jurisdiction thereof?" Not owing allegiance to anybody else. That is what it means.Notice that "jurisdiction" is political not territorial.
Even Calvins Case, to which you alluded:
"And it is to be observed, that it is nec coelum, nec solum, neither the climate nor the soyl, but ligeantia and obedientia that make the subject born: for if enemies should come into the realm, and possess a town or fort, and have issue there, that issue is no subject to the King of England, though he be born upon his soyl, and under his meridian, for that he was not born under the ligeance of a subject, nor under the protection of the King."Born in "the ligeance of a subject"
So what exactly is your point?
Note there is only one office not open to a naturalized citizen - the Presidency. That demonstrates that the NBC clause is to prevent naturalized citizens from being President. And as the alternative to naturalized citizens, there is, in the US Constitution, natural born citizens. Those citizens not naturalized, but citizens from birth, are in the second category, in opposition to the definition of the first.
Partly correct.
The question in WKA:
The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution.Was answered by declaring WKA to be a citizen under the 14th Amendment.
Prior to WKA there were two kinds of citizenship: native or natural born, and naturalized. Subsequent to WKA this is no longer true.
Gray misinterpreted the jurisdiction clause of the 14th Amendment applying it in a territorial rather than political sense, substituting domicile of the parents for citizenship of the parents.
The result of this broadened interpretation was that the children of aliens became citizens.
The court created a distinction where none had existed. It severed "native born citizen" from "natural born citizen".
Subsequent to WKA there are three kinds of citizenship: native born, natural born, and naturalized.
Article II's natural born citizen requirement is untouched.
Article II does not specify "no person except a naturalized citizen", Article II specifies "no person except a natural born citizen"
He that speaks much, is much mistaken.
It is worthless trying to discuss law with someone who doesn’t know what a holding is, binding precedence, or common law.
“Notice that “jurisdiction” is political not territorial. “
Every court disagrees with you. Your argument was considered and rejected in 1898. It was made again and rejected again in 1942. So what is YOUR point - that you expect the US government to reject the US Supreme Court rulings, and start a system of citizenship that rejects our entire history?
WKA was NOT just about the 14th. NBC was argued and the theory rejected. That is why half of the decision covers the meaning of NBC. I understand you don’t like the decision, but do you really think the US Supreme Court will overturn over 100 years of citizenship cases for the express purpose of rejecting Obama?
If you do not understand the difference between the question the case is ruling on, and how holdings go about answering that question, and which of the two are binding (hint: both), then there can be no legal discussion.
“Subsequent to WKA there are three kinds of citizenship: native born, natural born, and naturalized.”
No state, no court, and no member of Congress agrees with your novel theory. So what do you plan to do with it? If every court rejects your legal theory, and you continue to cling to it, are you not nuts?
Nowhere does it say that only "sons of freeholders" are citizens.
One would expect that anyone above the level of an idiot or a liar, would understand that voting was a by-product of citizenship.
While we're at it, let's look at one of your claims which you had ranted about earlier. (That paying taxes made you a citizen.)
SECT. 42. Every foreigner of good character who comes to settle in this state, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land or other real estate; and after one year's residence, shall be deemed a free denizen thereof, and entitled to all the rights of a natural born subject of this state, except that he shall not be capable of being elected a representative until after two years residence.
You're an idiot.
But I repeat myself.
Like an idiot.
Physically perhaps. Philosophically? I'm right there in the founding era.
I just noticed another part of the book that might interest you. He writes
Accustomed as we are to the progress of free institutions in civilized lands during the present century, it is difficult to realize that in 1787, at the time this Convention met, the only nations that actually possessed such liberties were England and little Switzerland.
And from which one did we copy our ideas of Government? Certainly not England. Yes, that does support my conjecture.
But in a footnote to that sentence, he adds
No one claims that the Constitution of the United States is indebted to Switzerland for its characteristics. In the debates of the Philadelphia Convention, Swiss institutions were mentioned only to be criticised. — See Elliot's Debates, V. 201, 208, 236.
Does it not occur to him that criticism of a pre-existing form of government is itself a contribution to the character of the subsequent one? By examining the Swiss form of government, people could see where it needed to be improved, and thereby avoid the mistakes already discovered in it. Had they not led the way, we might have stumbled into the same pitfalls as beset the Swiss.
It is by criticism of the Original Draft of the US Constitution that we obtained a bill of rights. Therefore, you might say that the character of the bill of rights was formed by criticism of the Constitution.
Thanks for that. I’ll save the link to it so I can reference it later.
What a dumb excluse.
Its Saturday and I’m not working today so I will type the footnote for you.
Ummm, for content purposes, that's no different than copying and pasting the text.
Anyway, thanks for proving my point. I said that nothing you've shown has been based on an actual legal precedent and this new passage gives NOTHING to support what you quoted earlier. Let's look specifically at this part where it drops the name of a case, but cites no direct passages:
Wong Kim Ark more directly addresses the issue of who is “natural-born” although it is acknowledged that neither of these cases involved the use of the term in connection with a presidential candidate and the unique Constitutional requirements for holding that office.
And of course, this passage above is wrong because, in Luria, the Supreme Court cited Minor as having direct impact on the unique Constitutional requirements for holding office while they refused to cite Wong Kim Ark. This passage also ignores the Wong Kim Ark ONLY cites the term natural-born citizen when referencing the appearance of the term in the Constitution and then by how it was defined in the Minor decision. That term is not used again anywhere else in the Wong Kim Ark decision. The rest of the paragraph is simpy a denial of the plaintiff's claims with no direct citations to support the reasoning.
There are additional citations to Inglis v Trustees of Sailors’ Snug Harbor, 28 US (3 Pet) 99, 7L. Ed. 617 (1830) and United States v. Rhodes, 1 Abbott 26, 40, 41 (1860) and cites to several contemporary ballot challenge rulings such as the 2012 Georgia challenge Farrar, et. al. v. Obama and the 2008 election Indiana challenge, Ankeny v. Daniels.
Citations or MENTIONS?? One needs to do more than mentions a decision by name. An examination of each decision shows that none of these cases could be used to make Obama eligible for office. Inglis says citizenship follows the status of the father. U.S. v Rhodes cites Shanks v. Dupont in affirming that one can't be a dual citizen at birth and that persons born in the U.S. can be considered foreign nationals strictly on the basis of their parents' loyalty to anothe rcountry. The Georgia challenge cites Ankeny, which admitted by footnote that only Minor defines NBC and that Wong Kim Ark does not. Thanks for proving my point that Purpura, like all these other challenges you've brought up, lacks specific legal precedent.
The citations may not be good enough to satisfy you but the appellate court affirmation rate is 100% affirmed. No presidential eligibility appeal since 2008 has been overruled.
Certainly the court system is fallible. I never said it wasn't.
But if you're talking about what was decided, then there is one correct representation of what was decided, and then there's complete BS that doesn't represent what was actually decided.
The fact that a birther can post a BS misinterpretation of literally any case that's ever been decided only means... that a birther can post a BS misinterpretation of any case that's ever been decided.
The fallacies are obvious, in every instance. And any honest, unbiased person can see that they ARE fallacies.
The fact that you so strongly believe you’re right and everyone else is wrong means that you live in a delusional world.
No, it means that in this instance I've done my homework, and birthers have posted reams and reams of absolute BS.
If you believe that ALL the court cases that you cite were decided correctly, I’m not the only one who is having fantasies.
Look. The historical understanding of "natural born citizen" is someone who was born in the country, or someone who was born a citizen.
Citizen parents were never required.
If that understanding is correct (and it absolutely is) then all the court cases that have said that (which includes every single court case that has ever directly ruled on the matter - there aren't that many of them) is correct also.
If “natural born” was a legal term you could look it up in a law dictionary and we wouldn’t be having this discussion.
If you accepted what the Founding Fathers, Framers and early legal authorities actually had to say about the matter, we wouldn't be having this discussion.
If you accepted what virtually every commentator on the subject had to say throughout history, then we wouldn't be having this conversation.
Your statement - that if we could look it up in a dictionary it wouldn't be an issue - I simply don't believe you.
Because we have DOZENS of authorities who are just as good as a law dictionary, who tell us with absolute clarity that it doesn't require citizen parents, and STILL you insist that it does.
We have William Rawle, who wrote a work on the Constitution so authoritative it was a standard text for 40 years. He knew both Franklin and Washington personally, talked with them in depth about the founding principles of the nation, and undoubtedly personally knew at least half a dozen other Framers as well. Probably more.
Rawle says with absolute clarity that the children born here of aliens are natural born citizens, with all the rights pertaining to that capacity (i.e., Presidential eligibility).
He's one of the most authoritative voices imaginable on the subject. Yet you refuse to believe him.
And almost every other major legal authority IN EARLY AMERICA also says the same thing, or something very similar.
Alexander Hamilton - one of our half dozen or so most import Founders and Framers in our entire history - says if you want to know the meaning of terms in the Constitution, don't look to Vattel. Look to the language of the common law.
But you won't believe Hamilton, either.
James Madison, the FATHER OF THE CONSTITUTION, says that both parentage and place of birth are important when it comes to citizenship, but that place of birth is "the most certain" criterion and IS "WHAT APPLIES IN THE UNITED STATES."
But you won't believe the Father of the Constitution, either.
A full FORTY PERCENT of the signers of the Constitution were in on passing a law that said children born to American parents NOT ON US SOIL were natural born citizens, too.
So THAT FULL FORTY PERCENT OF THE SIGNERS OF THE CONSTITUTION OBVIOUSLY DID NOT BELIEVE IT NECESSARILY TOOK BOTH BIRTH ON US SOIL AND CITIZEN PARENTS FOR PRESIDENTIAL ELIGIBILITY.
But you won't believe the signers of the Constitution, either.
So when you say if the term were in a law dictionary we wouldn't be having this conversation, that's BULL****.
Because the Founders and the Framers and those who were closest to them have told us quite clearly what it means.
And you absolutely refuse to accept their word.
Why? Why is that?
In this view, a citizen of Pennsylvania is he, who has resided in the state two years; and, within that time, has paid a state or county tax: or he is between the ages of twenty one and twenty two years, and the son of a citizen.
You’re still relying on circular logic instead of a stated legal precedent. Do you not understand what it means to cite an actual legal precedent??
Why use Calvins Case rather than anything earlier or later?
Why not go back to the common law circa 1324 during the reign of Edward II?
Jeff wrote:
“The fact that a birther can post a BS misinterpretation of literally any case that’s ever been decided only means... that a birther can post a BS misinterpretation of any case that’s ever been decided. “
My response to Jeff is:
The fact that an after-birther can post a BS misinterpretation of literally any case that’s ever been decided only means... that an after-birther can post a BS misinterpretation of any case that’s ever been decided.
Where did you get your law degree and how many years have you been practicing? Until you’re posted to the Supreme Court for your final job, your interpretation of anything is just as in-valid as anyone elses.
I did NOT quote James Wilson in the message to which you are responding. I explicitly quoted the Pennsylvania Constitution from 1776. As usual, you didn't respond to the point I made in the message to which you have replied, you appear to be responding to some OTHER message.
One thing about you, you have a knack for introducing confusion, but then again, that is the enemy of truth, is it not?
Why use Calvins Case rather than anything earlier or later?
Why not go back to the common law circa 1324 during the reign of Edward II?
It is self evident to me that the Gray court simply arrived at their decision based on what they wanted, then researched through history to find law that would support their decision. (Legal rationalization.) It was just as much of a political decision as was the Dred Scott decision of the Taney court.
The Wong Kim Ark case was really unfair, and the Judges were not willing to let this man be deprived of his citizenship simply because of a legal technicality or an unfair racist law. (Chinese exclusion act.)
.
Good find, by the way. I've been looking for documentary evidence of the feudal relationship between King and Subject, and how "bondage" to the land is the basis of the "natural born subject" bit of law. It becomes very obvious when you look at the origins of English Law regarding "natural born subject" that it is completely incompatible with the principle of American Independence.
No, but you quoted him elsewhere.
One thing about you, you have a knack for introducing confusion, but then again, that is the enemy of truth, is it not?
You are the biggest fraud on FreeRepublic.
I asked you earlier what your motivation was. You never answered. I think you're simply a type of troll. You come on here pretending to be about truth, and then almost everything you say is false or otherwise twisted.
I think it's some kind of idiotic game for you.
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