Posted on 08/23/2017 3:47:18 AM PDT by GregNH
I don't think you can make a blanket statement like that without addressing why the Framers used the term "citizen" for Congress, but "natural born citizen" for the President.
A definition of "natural born citizen" that encompasses "citizen" goes against the distinction in the Constitution, and therefore must be explained.
That's why, in my post #121, I define "We the People" as "citizens," and "our Posterity" as "natural born citizens."
Using only the language of the Constitution, We the People gave ourselves the power to vote for the House of Representatives, therefore if you can vote for a Representative then you are We the People. The President had the tighter requirement of natural born citizen as a means of "securing to ourselves and our posterity..." the "Blessings of Liberty." To do that, We the People made the President required to be the posterity of We the People, that is, a natural born citizen.
That's my explanation using the words in the Constitution. How do you explain the different citizen requirements between Article I and Article II, and how they reflect on the definition of the "natural born" phrase to make it distinct?
-PJ
This is funny, because when this amendment was being debated, the author of the Amendment made it clear that he never intended for the children of transient aliens to be given American Citizenship.
My tagline "of parents owing allegiance to no other sovereignty." is part of a quote from John Bingham in the debates on the amendment.
However the plain meaning of the words Natural Born Citizenship arguably includes any form of Citizenship at birth--effectively birthright Citizenship.
Non sequitur. It implies a very specific form of citizenship. If it meant any sort of citizenship, the qualifier "natural born" would have been omitted.
My own view is that if the Cruz facts really included citizenship under Congressional citizenship law at birth and if the case reached the Supreme Court under circumstances in which he was elected President, the Court would hold the term includes persons born outside the US who had birthright citizenship under then applicable citizenship law.
In one of the most famous citizenship decisions in the Supreme Court's History, the Dicta already contradicts this position.
" Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts."
‘However the plain meaning of the words Natural Born Citizenship arguably includes any form of Citizenship at birth—effectively birthright Citizenship.’
“I don’t think you can make a blanket statement like that without addressing why the Framers used the term “citizen” for Congress, but “natural born citizen” for the President.
A definition of “natural born citizen” that encompasses “citizen” goes against the distinction in the Constitution, and therefore must be explained.”
Excellent point. The Framers did, as a matter of fact, distinguish between citizens and Natural Born Citizens. Liberals have been trying to erase that distinction ever since.
Yep, I made note of that.
The Founders used the terms natural born and native born interchangeably. The best example is St. George Tucker’s statement.
“That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, where-ever it is capable of being exerted, is to be dreaded more than the plague.”
http://press-pubs.uchicago.edu/founders/documents/a2_1_1s18.html
There is also the statement by Congressman Hillhouse of Connecticut during the 1795 debate over the Naturalization Act, that the children of an alien father would be natural born citizens.
“The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” Ryder v. United States (94-431), 515 U.S. 177 (1995).
‘a happy means of security against foreign influence, which, where-ever it is capable of being exerted, is to be dreaded more than the plague.”’
Obama certainly proved this point. He never made a decision that favored the US over foreign interests.
“And that would mean the mom (Stanley Ann) would have had to have lived in the US from August 1960 to August 1961.”
The stated law does not say immediately before the birth only prior to the birth. That she spent the first 17 years of her life in the US would have met the requirement.
But it doesn’t matter because the applicable law in 1961 was the 1952 Immigration and Nationality Act. Under that lawshe would have needed to be a resident of the US for a period five years after the age of 14. She did not meet that requirement.
Thanks for the ping!
Thanks for the ping!
Correct. Nothing to do, however, with eligibility to hold office which is not a deficiency in "legality of appointment or election to office".
Then what is it? And what is "deficiency in legality of appointment or election to office?"
I don't really want to continue an extended debate with you on this topic. You can do the legal research to find the Supreme Court law on the issues which is actually fairly clear on the decided points.
It has long been established law that where there are ministerial errors in determining the election result or in certifying or installing the person deemed to have been election which result in a person being installed in office who is not the person who won the election, the installed candidate serves with full power of office until he is removed or replaced by due process of law.
It is further established law that these rules do not apply when the deficiency in the person installed is that they are not eligible to hold the office--a person who is not eligible does not hold the power of the office; that simple.
It doesn't have to be extended. Two simple questions. Two simple answers.
It is further established law that these rules do not apply when the deficiency in the person installed is that they are not eligible to hold the office--a person who is not eligible does not hold the power of the office...
Established in which court decision?
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In context: "The citizens of each state constituted the citizens of the United States when the Constitution was adopted. The rights which appertained to them as citizens of those respective commonwealths, accompanied them in the formation of the great, compound commonwealth which ensued. They became citizens of the latter, without ceasing to be citizens of the former, and he who was subsequently born a citizen of a state, became at the moment of his birth a citizen of the United States. Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity."
William Rawle, a district attorney in Pennsylvania, believed that much of our Constitution was based on the English version of common law and this of course shaped many of his opinions. Why might he have held those views? Well, for one thing, William Rawle was a loyalist. That is, he was on the British side of the American Revolution. Only later, after the war, did he obtain favor with General Washington.
A Loyalist, Rawle fled to New York on the sloop Harlem in June 1778, when the British evacuated Philadelphia. After studying law in New York, Rawle traveled to Cork, Ireland, and London, England, in 1781. In London, Rawle studied law at the Middle Temple until his departure for France in late June or early July 1782.In the midst of the war, he's studying law in England. He was in direct opposition to 2 of the actual framers who created the actual document. On this one, it's not even close. The words and opinions of actual patriots and founding fathers James Madison and George Mason carry all the weight.
October 18, 1787 - James Madison wrote to George Washington, N. York:
"Since the Revolution every State has made great inroads & with great propriety in many instances on this monarchical code.[Edit: Englands "Common Law"] The "revisal of the laws" by a Committe of wch. Col. Mason [Edit: George Mason] was a member, though not an acting one, abounds with such innovations. The abolition of the right of primogeniture, which I am sure Col. Mason does not disapprove, falls under this head.. What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & anti-republican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law."
June 18, 1788 - George Mason, In Convention, Richmond (Debates in the Several State Conventions on the Adoption of the Federal Constitution), states:
"We have it in our power to secure our liberties and happiness on the most unshaken, firm, and permanent basis. We can establish what government we please. But by that paper we are consolidating the United States into one great government, and trusting to constructive security. You will find no such thing in the English government. The common law of England is not the common law of these states."
Just as they had done more than a decade earlier by declaring their independance from the crown, here we see the father of the Constitution, and the father of the Bill of Rights rejecting the English Common Law as being the American Common Law.
Since Rawle believed that "citizen" and "natural born Citizen" were the same thing per the Constitution, why then would the framers have made the distinct difference in the requirements for Reps & Senators ("citizen") vs the President and Commander in Chief ("natural born Citizen")? Apparently, he thought himself wiser than the framers, who actually did change the requirement from "citizen" to "natural born Citizen" after the suggestion of John Jay (who, like other founders, had Vattel's Law of Nations in his home library).
James Madison, 1789: "It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.""
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The debate of the election of William Smith to the House of Representatives dispute involved the construction of Art. I, Sec. 2, clause 2 ("citizen"). It has nothing to do with the construction of Art. II, Sec. 1, clause 5 ("natural born Citizen"). Nowhere in that debate, is anyone trying to clarify who a "natural born Citizen" is. Madison was arguing in favor of Mr. Smith being a "citizen."
William Smith born in the colony of South Carolina was while a youth sent to Europe for his education where he remained till the termination of the revolutionary war In November 1783 he returned and in November, 1788 was elected as one of the members to represent the State of South Carolina in the Congress to commence on the 4th of March 1789. His seat being contested on the ground that he had not been "seven years a citizen of the United States" it was held after debate that he was entitled to the seat.[1]. Madison never disputed Ramsay (who challenged Smith) or a "natural born Citizen" being one born in country to citizen parents.
James Kent, "Commentaries on American Law", 1826: "Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent.""
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Whoever put that quote together (~early 1900's), utterly bastardized the original writing of Kent's actual Commentaries. In fact, not only is the 1st sentence not an accurate quote, the entire 2nd sentance is nowhere to be found in Kent's work. Not only is it missing in Lecture 25, but it's absent from the entire Commentaries. It's simply someone else's opinion of the misquoted 1st sentence.
LECTURE 25 - Of Aliens and NativesWE are next to consider the rights and duties of citizens in their domestic relations, as distinguished from the absolute rights of individuals, of which we have already treated. Most of these relations are derived from the law of nature (edit: I.E. NOT from the English version of Common Law), and they are familiar to the institutions of every country, and consist of husband and wife, parent and child, guardian and ward, and master and servant. To these may be added, an examination of certain artificial persons created by law, under the well known name of corporations. There is a still more general division of the inhabitants of every country, under the comprehensive title of aliens and natives, and to the consideration of them our attention will be directed in the present lecture.
(1.) Natives are all persons born within the jurisdiction of the United States. If they were resident citizens at the tune of the declaration of independence, though born elsewhere, and deliberately yielded to it an express or implied sanction, they became parties to it, and are to be considered as natives; their social tie being coeval with the existence of the nation.
Kent goes on to reitterate that "natural born subjects" can not renounce their perpetually owed alligiance to the crown, the the English version of common law is "repugnant" to the free and independent people of the U.S. The Declaration of Independence would not have been possible if English common law was used.
It bas been a question, frequently and gravely argued, both by theoretical writers, and in forensic discussions, whether the English doctrine of perpetual allegiance applies in its full extent to this country. The writers on public law have spoken rather loosely, but generally in favor of the right of a subject to emigrate, and abandon his native country, unless there be some positive restraint by law, or he is at the time in possession of a public trust, or unless his country be in distress, or in war, and stands in need of his assistance.10 is Cicero regarded it as one of the firmest foundations of Roman liberty, that the Roman citizen had the privilege to stay or renounce his residence in the state, at pleasure.11 The principle which has been declared in some of our state constitutions, that the citizens have a natural and inherent right to emigrate, goes far towards a renunciation of the doctrine of the English common law, as being repugnant to the natural liberty of mankind, provided we are to consider emigration and expatriation, as words intended in those cases to be of synonymous import.[1][2].
If one looks at another part of his Commentaries, we can see that Kent uses the terms "natural born" and "native" interchangably.
LECTURE 13 - Of the President[3]. Someone born to a foreign parent (i.e. father), would naturally inherit that foreign citizenship/subjectship and therefore be a inducement for corruption, etc. to the our presidency...something Europe was all to familiar with. If one is born in territory, to parents who are themselves citizens, there is naturally no foreign intrigue or inducements from birth. Of course people can still be influenced later in life, but the "natural born Citizen" requirement was the single easiest way to try and prevent that outside influence on the commander in chief. Kent agreed with the "natural born Citizen" requirement. Otherwise, simply a "citizen" would have been ok for the Presidency, as was (and still is) the requirement for Rep & Senator.(2.) The constitution requires,3 that the president should be a natural born citizen, or a citizen of the United States at the time of the adoption of the constitution, and that he have attained to the age of thirty file years, and have been fourteen years a resident within the United States. Considering the greatness of the trust, and that this department is the ultimately efficient power in government, these restrictions will not appear altogether useless or unimportant. As the president is required to be a native citizen of the United States, ambitious foreigners cannot intrigue for the office, and the qualification of birth cuts off all those inducements from abroad to corruption, negotiation, and war, which have frequently and fatally harassed the elective monarchies of Germany and Poland, as well as the Pontificate at Rome.
In fact, Kent thought the topic of natural law, and the Law of Nations (which is built on natural law), so important, his first "lecture" in these Commentaries is about that topic.
LECTURE 1 - Of the Foundation and History of the Law of Nations[4]WHEN the United States ceased to be a part of the British empire, and assumed the character of an independent nation, they became subject to that system of rules which reason, morality, and custom had established among the civilized nations of Europe, as their public law. During the war of the American revolution, Congress claimed cognizance of all matters arising upon the law of nations, and they professed obedience to that law, “according to the general usages of Europe.”1 By this law we are to understand that code of public instruction, which defines the rights and prescribes the duties of nations, in their intercourse with each other. The faithful observance of this law is essential to national character, and to the happiness of mankind.
...
There is a natural and a positive law of nations. By the former, every state. in its relations with other states, is bound to conduct itself with justice, good faith, and benevolence; and this application of the law of nature has been called by Vattel, the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others, the internal law of nations, because it is obligatory upon them in point of conscience.3
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The most popular, and the most elegant writer on the law of nations, is Vattel, whose method has been greatly admired. He has been cited, for the last half century, more freely than any one of the public jurists.
“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 the parents. As to this class there have been doubts, but never as to the first.” Id. (Emphasis added and note, not "natural born Citizens".)” Minor v. Happersett, 88 U.S. 162, 168 (1874).
No. That doctrine is not applicable where the deficiency is attributed to ineligibility to hold the position.
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That's right.
To satisfy the doctrine, the officer must be "in the unobstructed possession of the office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the appearance of being an intruder or usurper.
Barry fails the test, miserably...on multiple accounts.
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