Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: CpnHook
Setting aside your gratuitous insults, let me address your argument based on Perkins v. Elg: "how citizenship may be acquired" is quite distinct from whether one is a "natural born citizen" so as to be eligible for the presidency as as specified in Article II of the Constitution. Therefore, it is you who are setting out a straw man on the point, not I.

As to Story's opinion in Shanks: Here is precisely what he says on point:
"The incapacities of femes covert provided by the common law apply to their civil rights and are for their protection and interest. But they do not reach their political rights nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law applicable to ordinary transactions, but stand upon the more general principles of the law of nations.

Perhaps it is you who should read more carefully. What Story holds applies not just to the question of what "natural born citizen" means in the Article II eligibility clause but to the broader category of the law of political citizenship as a whole. Thus, according to Story, who was the acknowledged expert at the time on the subject, what was said in English common law did not apply to this broad category just because it was set out in English common law. You have asserted that Story did not say what I have just shown that he clearly said. The argument for Cruz' meeting the presidential eligibility requirement relies upon the leap from the fact that the Framers were familiar with English common law that is what they had in mind when they chose the language for the eligibility clause. What Story held does not support that leap in reasoning.

536 posted on 02/10/2016 3:31:14 PM PST by AmericanVictory (Should we be more like them or they more like we used to be?)
[ Post Reply | Private Reply | To 535 | View Replies ]


To: AmericanVictory
let me address your argument based on Perkins v. Elg: "how citizenship may be acquired" is quite distinct from whether one is a "natural born citizen" so as to be eligible for the presidency as as specified in Article II of the Constitution.

You were claiming that Shanks stands for the proposition that "the Framers, in matters of citizenship, looked to the law of nations." No. Nothing in Shanks states that. By contrast, Perkins v Elg makes clear that in matters of citizenship, our municipal law governs.

As to Story's opinion in Shanks: Here is precisely what he says on point: "The incapacities of femes covert provided by the common law apply to their civil rights and are for their protection and interest. But they do not reach their political rights nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law applicable to ordinary transactions, but stand upon the more general principles of the law of nations.

And I put you to the task of quoting the text to demonstrate Story makes no reference to the "Framers" or that our citizenship laws follow the law of nations. Shanks involved potentially competing claims by the U.S. and England over Ann Shanks's nationality. And resolution of the property dispute turned on application of two treaties between those nations. Treaties. Multi-nation claims. That is the stuff of the law of nations. Not birth citizenship governed solely by U.S. municipal law.

Thus, according to Story, who was the acknowledged expert at the time on the subject, what was said in English common law did not apply to this broad category just because it was set out in English common law.

Story's view was the English common law jus soli was the rule in the U.S. And this is made abundantly clear in Story's concurring opinion in Inglis v Trustees of Sailors Snug Harbor, the companion case to Shanks (the cases were decided and handed down together). Here's Story's discussion on the alienage of John Inglis, a person born in NY of date uncertain:

With these principles in view, let us now come to the consideration of the question of alienage in the present case. That the father and mother of the demandant were British born subjects is admitted. If he was born before 4 July, 1776, it is as clear that he was born a British subject. If he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. 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.

You have asserted that Story did not say what I have just shown that he clearly said.

Story says nothing about the Framers looking to the law of nations on citizenship. Story, however, does clearly espouse the English common law rule.

538 posted on 02/10/2016 7:42:08 PM PST by CpnHook
[ Post Reply | Private Reply | To 536 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson