I was particularly stunned by a comment by birther litigant and frequent Internet commenter David Farrar:
I have no aversion to common law. English common law was never American colonial common law. The English Parliament did not make common law for the American colonies. It was this lack of representation in Parliament that, indeed, lead to the American Revolution.
— David Farrar
— Comment at Augusta Free Press (2015)
Not only is this not true, it is the opposite of the truth. The American Revolution was justified in part by the refusal of the English to allow the Americans the rights that would have been afforded them under the English Common Law. I have known this for some time from my reading on the topic of citizenship. Justice Joseph Story wrote about the expectations Americans had for the English Common Law:
§ 78 … In the charters, under which all these colonies were settled, with a single exception, there is, an express declaration, that all subjects and their children inhabiting therein shall be deemed natural-born subjects, and shall enjoy all the privileges and immunities thereof; and that the laws of England, so far as they are applicable, shall be in force there; and no laws shall be made, which are repugnant to, but as near as may be conveniently, shall conform to the laws of England. Now this declaration, even if the crown previously possessed a right to establish what laws it pleased over the territory, as a conquest from the natives, being a fundamental rule of the original settlement of the colonies, and before the emigrations thither, was conclusive, and could not afterwards be abrogated by the crown. It was an irrevocable annexation of the colonies to the mother country, as dependencies governed by the same laws, and entitled to the same rights.
§ 79. And so has been the uniform doctrine in America ever since the settlement of the colonies. The universal principle (and the practice has conformed to it) has been, that the common law is our birthright and inheritance, and that our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation. The whole structure of our present jurisprudence stands upon the original foundations of the common law.
§ 80. We thus see in a very clear light the mode, in which the common law was first introduced into the colonies; as well as the true reason of the exceptions to it to be found in our colonial usages and laws. It was not introduced, as of original and universal obligation in its utmost latitude; but the limitations contained in the bosom of the common law itself, and indeed constituting a part of the law of nations, were affirmatively settled and recognized in the respective charters of settlement. Thus limited and defined, it has become the guardian of our political and civil rights; it has protected our infant liberties; it has watched over our maturer growth; it has expanded with our wants; it has nurtured that spirit of independence, which checked the first approaches of arbitrary power; it has enabled us to triumph in the midst of difficulties and dangers threatening our political existence; and by the goodness of God, we are now enjoying, under its bold and manly principles, the blessings of a free, independent, and united government.
Chapter XVI. Justice Joseph Story on Common Law and Constitutional Origins of the United States Constitution
No less than the American Declaration of Independence cites the withholding of the common law as a grievance. In his paper, “Declaration of Independence,” James R. Stoner, Jr., of Louisiana State University wrote:
As a political statement, the Declaration was the culmination of a series issued by the several Continental Congresses, the voluntary associations of representatives of thirteen British colonies in North America that spoke for the colonists as a whole. These documents catalogued grievances against British colonial policy, appealing for the most part to liberties and privileges claimed under the English constitution and the common law.
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The Declaration and Resolves of the First Continental Congress in 1774 had introduced its catalogue of rights as follows: “That the inhabitants of the English colonies in North-America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following RIGHTS” – and rights to life, liberty, and property began the list. As this last passage makes plain, the Americans generally did not see a practical distinction between natural law and the common law, nor between natural rights and British liberties. Violations of the English constitution proved the king a tyrant; natural rights indicated what could be justly done by a people thus oppressed.
In particular, those resolutions of the First Continental Congress in 1774 included:
Resolved, N.C.D. 2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England.
Resolved, N.C.D. 5. That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.
Resolved, N.C.D. 6. That they are entitled to the benefit of such of the English statutes, as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.
Law.com defines the Common Law as:
n. the traditional unwritten law of England, based on custom and usage, which began to develop over a thousand years before the founding of the United States.
I want to focus for a moment on the word “customary,” as well as the word “birthright” in the earlier passages. What is customary is also seen as natural. Natural law is not distinct from custom, and so when we talk about natural law, we see that is the English Common Law that formed customary ideas about human rights and liberty, and that is was natural to the newly independent Americans.
I didn’t have time to do this article justice, and to develop in more detail the relationship of the common law to natural law. In America the English Common Law was seen as one and the same as natural law, and Vattel was somewhat of an outsider.
I’m not sure I ever came across a birther who knows what the common law really is.
From a Steven Lee Craig reply to me, I forget where:
“Your problem is that you have ZERO understanding of Law in general and specifically English Common Law and its roots and source known as “natural law and the laws of nations” as 1st advanced by the father of Western Civilization, Aristotle, and then followed and expounded on over the centuries by legal luminaries such as Cicero up to Vattel and Blackstone.
In short, you jump like a grasshopper from one burning bush to another leaving behind nothing but smoke and ashes.”
Mike Martisko:
“It is that which is common across all spectrum’s of humanity, and treat each and every individual equally without regard to the esoteric differences of race, creed, or color, or gender.”
Tracy Fair says,
“English common law consisted of THE LAW OF NATIONS!”
I’ll have to look through my special 00bot dossiers. I must have a gazillion of these things.
Speaking of David Farrar and the common law, there’s the time he thought Mario Apuzzo really HAD been named to Harvard’s Ezra Pound Chair of Common Law:
http://teapartyorg.ning.com/forum/topics/i-will-file-against-mitt-romney-if-he-is-nominated
David Farrar has said some really stupid and ignorant things over time, but I really do think he has gone for a personal best here. This is ignorance and stupid above and beyond the call.
He said something similar over at Cafe Con Leche GOP and I noticed that it was a step above his normal level of inanity. Personally, I think that David and his cargo cult delusions about the law are pretty much the bottom of the barrel as far as birther erudition, but lately David seems to have realized that Orly was not the most effective lawyer in the world when she represented him and some solid recent efforts by Adrien Nash and Tommy McCann III had me wondering if he was going to be knocked off of his throne of ignorance, but he seems to have responded.
Oooooh! Dossiers! Neato!
Maybe not, but its a good’un.
I think Dr. Conspiracy is again misleading and misconstruing David’s comments.
“It was this lack of representation in Parliament that, indeed, lead to the American Revolution.”
That is absolutely true. One of the cries from the American Colonies was “Taxation WITHOUT REPRESENTATION!”
REPRESENTATION is the key word.
So putting David’s comments in the correct context:
“I have no aversion to common law. English common law was never American colonial common law. The English Parliament did not make common law for the American colonies. It was this lack of representation in Parliament that, indeed, lead to the American Revolution.”
WITHOUT REPRESENTATION this comment is absolutely true. The colonies were OK with English Common Law as Dr. Conspriacy indicated, it was REPRESENTATION that the Colonies had a problem with. There was either no or inadequeate representation and this was the Colonies main grevenious.
You really are functionally illiterate aren’t you John!!!
‘The American Revolution was justified in part by the refusal of the English to allow the Americans the rights that would have been afforded them under the English Common Law.”
In other words there was lack of REPRESENTATION on the part of the American Colonies. They were neither represented nor their voices were being heard. It was this lack of voice or representation that lead to the American Revolution.
After the American Revolution, the Colonies was an independent government of the United States of America. As such, their LAW was their own although some may have been taken from English Common Law.
Oh look, john tried rubbing two brain cells together, and once again managed to only burn up said brain cells.
john’s comment is perfect example of how birthers create an interpretation that ignores established facts. It’s like someone saying that Hamlet wasn’t really prince of Denmark because all his dialogue is in English.
In all fairness, he did get this part right:
“The English Parliament did not make common law for the American colonies.”
Of course, Parliament did not make common law for England either…
I was actually watching a Tony Robinson procram on one of the channels today. The origin of Common Law was a Judge that had the idea of writing down all the judgements of the travaling judiciary so that they could all have a common set of case law to draw upon when delivering judgements.
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Indeed.
In the first year of law school, one studies little else besides common law–starting with the early case law in England and progressing through cases in early American court decisions (which cite the English case law), This is how law students learn Torts, Contracts, and Property Law–it all came from the English case law and continuously evolved in each jurisdiction, judge by judge, case by case–each judicial opinion citing the cases that preceded it. If I’m not mistaken, only Louisiana law was not founded upon English common law (Louisiana having French origins).
Essentially, all statutory law is merely a legislative codification of judicial common law, plus statutory amendments enacted thereto over time. So, to my ears, the notion that our law is not based on English case law (aka common law) is nonsensical. From my perspective, one cannot really understand American law without a understanding of the common law upon which it is built. Indeed, every time a birther mentions libel, slander, fraud, etc.–they are talking about common law torts as old as the hills, originating in England!
David Farrar and John need to read The Declaration and Resolves of the First Continental Congress, which contains these clauses:
Resolved, N.C.D. 5. That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.
Resolved, N.C.D. 6. That they are entitled to the benefit of such of the English statutes, as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.
http://www.ushistory.org/declaration/related/decres.htm
Professor Lawrence M. Friedman, author of the authoritative “A History of American Law” (in print continuously since 1973), has this to say about the English common law and American law:
The common law had little to fear. It was as little threatened as the English language. The courts continued to operate, continued to do business; they used the only law that they knew. Few lawyers had any knowledge of French. French law books were rare and inaccessible; English authorities flooded the country.”
AHA!! YOU SEE YOU SEE OBAMA ISA USERPER AFTER ALL!!! LOUISIANA WAS FOUNDED ON VATTEL!!! SO THIS PROVES THAT 212 APPLIES AND FROGMARCHNG AND [/Nash as he hammers on the keyboard while watching himself naked n the mirror]
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Ha, well, I’m not an historian or a Louisiana lawyer so I wouldn’t have a clue, but that sounds like an interesting theory…
And there’s a big part of the problem: evolution is the reality, but birthers are creationists, who believe our legal system was magically built from scratch, by people who thought the way they do.
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Well, people have a lot of strange theories about the founding of our country/law. I once read an article in a supermarket rag that said that the founders couldn’t possibly be so brilliant as to just create the Constitution out of thin air, proving that the founders were visited and assisted by more-advanced aliens from outer space…
Which is funny, birthers must have skipped the chapters on the age of enlightenment and reason while in school
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I love this line. It has always seemed to me that our case law is like a very long, deep, ongoing “conversation” among judges, generation after generation.
Thanks. I added this to the article.
RWNJs in general strike me as people who fear and hate change. Any time we, as a nation, progresses towards something better, they moan about how it will be our undoing! This leads me to believe that if this was Revolutionary War era America, they’d be Loyalists.
A little research, and keeping in mind IANAL, it appears that the Northwest Territory (including present day Indiana) adopted English common law in 1795.
http://journals.iupui.edu/index.php/inlawrev/article/view/3228/3155
i think he’s realised that for some time now.
hell, i took the piss mercilessly when he told me oily was representing him and i told him he’d lose, not just for being wrong, but by having the united states most incompetent lawyer.
his reply was `we’ll see’
and oh we did see, didn’t we!
‘the common law of England is not the common law of these states’ George Mason, 19 June, 1788.
One man’s opinion. Your problem being that many of the states in their constitutions adopted the common law.
True, but, in birther math, one opinion that agrees with them is worth more than 100 contrary facts. Since there were only 13 states at the time, it’s mathematically impossible to refute Mason’s claim.
I would ask for the source and and more particularly the context of the quote considering the author’s known level of veracity.
And lo and behold when one looks at the quote, it comes from a debate about how the nascent US government and the states should handle treaties……NOT a common law matter qu’elle surprise.
Does ‘friend’ care to try again….?
Never trust a quote miner who doesn’t know how to properly punctuate or cite the quote he takes out of context. That’s kind of a law of mine.
Article 2 Section 1 of the Constitution
“No person except a natural born citizen (Or something functionally equivalent like A Native Born Citizen or A Citizen at Birth Or a citizen that is Strong Enough to be a Natural Born Subject or a Citizen that is as much like a Natural Born Citizen), or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President;…..”
As one can read only a “Natural Born” Citizen is eligible. It really boils down to whether we take the literal term of “Natural Born” or possible permutations of it.
As Wong Kim Ark Ruled:
Wong Kim Ark was not a “Natural Born” Citizen. Wong Kim Ark was a Native Born Citizen or a Citizen at Birth Or was Strong Enough to be an Natural Born Subject Or was A Citizen as Much as a Natural Born Citizen.
So in Wong Kim Ark, Wong Kim Ark was NOT a “Natural Born” Citizen but was a permutation of a Natural Born Citizen.
Therefore, the question for the Supreme Court would be:
Is the term “Natural Born” Citizen a Unique term or can one be eligible for the POTUS under a possible permutation of a “Natural Born Citizen” such Native Born or Citizen at Birth? (In other words, stating someone is NOT Natural Born but is a functional equivalent of it.)
We already know that Minor Vs. Happersat Defined the the term “Natural Born” Citizen.
Wong Kim Ark merely expanded on the possible permutations of “Natural Born” Citizen:
Citizens who are NOT “Natural Born” Citizens but are Functionally Equivalent to one :
These included Citizens at Birth and Native Born Citizens.
Wong Kim Ark and Barack Obama fall into these categories but Article 2 Section 1 only states that “Natural Born” citizens can be eligible for the POTUS.
This lead to the SCOTUS question cited earlier.
Chief Justice Fuller who wrote the dissent in Wong Kim Ark lamented that Wong Kim Ark could run for the office of the President when he observed:
Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, WERE ELIGIBLE TO THE PRESIDENCY, while children of our citizens, born abroad, were not.” United States v. Wong Kim Ark,169, U.S. 649, 715 (1898) (C.J. Fuller, dissenting)(emphasis added)
As such, even the DISSENT in Wong Kim Ark acknowledged that the majority’s holding would allow Wong Kim Ark to be eligible to the presidency.
Now my question is this: If the DISSENT acknowledged that Wong Kim Ark can be a President then how is it you believe that Wong Kim Ark was not a natural born citizen?
If Wong Kim Ark was not a natural born citizen then please explain why Chief Justice Fuller tell us in his dissent that because of the majority ruling that Wong Kim Ark was eligible to be president with the following words “that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency.”? United States v. Wong Kim Ark,169, U.S. 649, 715 (1898)(C.J. Fuller, dissenting)
Furthermore, if Wong Kim Ark was only a “citizen” as you stated then why was Chief Justice Fuller having a hysterical fit over the majority’s ruling that would allow children of foreigners of the MONGOLIAN race who happened to be born to them while passing through the United States are eligible to the presidency?
If Chief Justice Fuller who wrote the dissent understood that Wong Kim Ark was a natural born citizen because he was eligible to the presidency then why can’t today’s birthers understand the same logic and reasoning that so apparent to Chief Justice Fuller back in 1898?
Who’s this “we”? It ain’t us.
And what is the language of the Constitution based on?
Answer: English Common Law.
You would have us disregard our common law heritage from the English in which Chief Justice Marshall observed “whose language is our language and whose laws form the substratum of our laws.” U.S. v. Burr 25 Fed. Cas. 55, no. 14,693 C.C.D.Va. 1807
In fact, we are informed that “The framers of the Constitution were familiar with common-law concepts and the words and phrases employed by common-law lawyers.” In re Gannon, 27 F. 2d 362 , 363 (ED PA 1928)
“In many cases, the language of the constitution and laws would be inexplicable without reference to the common law; and the existence of the common law is not only supposed by the constitution, but it is appealed to for the construction and interpretation of its powers. “ James Kent, Commentaries on American Law (1826) page 316
And this is from your good buddy Chief Justice Moore of Alabama:
“Our jurisprudence explains that old English statutes are a part of the common law. The statutes passed in England before the emigration of our ancestors, which amend the law and are applicable to our situation, constitute a part of our common law.” Ex parte HH, 830 So. 2d 21, 33 (Alabama 2002)( Moore, C.J., concurring)
If the term in the Constitution “natural born” were to be construed other than its common law origin then in the words of Chief Justice Marshall “It is hardly conceivable that the term was not employed by the framers of our Constitution in the sense which has been affixed to it by those from whom we borrowed it. So far as the meaning of any terms, particularly terms of art, is completely ascertained, those by whom they are employed must be considered as employing them in that ascertained meaning, unless the contrary be proved by the context.” U.S. v. Burr 25 Fed. Cas. 55, no. 14,693 C.C.D.Va. 1807
“Where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived” quoting Alexander Hamilton, Pollock v. Farmers’ Loan & Trust Co., 157 US 429, 572 (1895)
Pop Quiz:
What country is the Pollock’s court referring to when it mentioned “language of that country from which our jurisprudence is derived?:
a. Iceland
b. France
c. England
That is a good question. Wong Kim Ark wasn’t seeking eligibility consent from the court so there was no need for the court to address such issue. The fact the Fuller mentions it was probably in dicta. In any event, had Wong Kim Ark been seeking consent for eligibility, the court probably would have found Wong Kim Ark to eligible. Again, the Wong Kim Ark agreed that Wong Kim Ark was NOT a Natural Born Citizen (That is a citizen born of Citizen parents) but they did believe that Wong Kim was a permutation of a Natural Born Citizen, in other words he was not a Natural Born Citizen but was functionally equivalent to one. (Basically the context of the Court’s ruling) However, the Constitutions says you have to be an NBC (Not Functionally equivalent to one) to be eligible. I guess you could say the Wong Kim ark agreed in someone that is a Functionally Equivalent Permutation of a Natural Born Citizen is eligible to be the POTUS. Nonetheless, the court has never ruled definitively on that issue.
Another way to put it. Suppose that pure H2O alone is a Citizen. Now suppose Ice is a Natural Born Citizen and Flowing Water is a Citizen at Birth and H2O released as a by product of a reaction is a Naturalized Citizen.
Would 1 gram of ice be equivalent to 1 gram of flowing water ? – Yes, they are both pure H2O.
Now is Solid Ice the same as flowing Water? No, Ice is a solid but flowing water is a liquid.
Both are functionally equivalent and they come from the same substance but are different in form.
It is the same as Citizen at Birth and NBC. Both are functionally equilvalent and they come from the same source but are different in form.
Geez, did all the attention David Farrar got make you jealous?
John, I’d say that theory is all wet.
Water, water, everywhere, and not a drop to think.
As usual you are quite wrong. The court in Minor said specifically that they were not defining the term because they didn’t have to do that. The court in WKA noted that Justice Waite left question unanswered. What Gray said was that Minor and other decisions made it clear that that there are only two paths to citizenship: birth and naturalization. Gray then went on to explain that only one path was open to WKA. He could only be a natural born citizen or he was not one at all.
Fuller and all the other legal scholars at the time understood the WKA ruling quite clearly. Those like you, Apuzzo, Farrar and Tracy who are trying to invent a new class of citizenship from the ruling are truly pathetic. Your dishonesty is quite transparent.
Why do you and your ilk write about things you know nothing about? The is no dicta in a dissenting opinion. And, to say the majority in any way said Wong Kim Ark was not a natural born citizen is simply a lie. If you said that to a court they would laugh at you like they have with all the birther cases. The court determined that persons of his status were citizens because he was a natural born citizen. More specifically, that persons of his status were natural born subjects and the definition of natural born citizen and the by birth clause of the 4th Amendment simply restated such English common law rule. It doesn’t matter whether Wong Kim Ark was seeking eligibility, the court still made clear the term was defined by the English common law and such was not dicta. Do you really think you are smarter than court after court which looks to Wong Kim Ark as the sole precedent in the case? Can you not understand than no legal authority looks to Minor v. Happersett might mean that such does not define the term, but rather specifically declines to address the status of children of aliens. Getting laughed out of court over and over again would make most people have some self reflection on the sources of their claims. You people seem incapable of that. Why not visit an actual constitutional attorney and ask them. This does not mean the clowns of the birther bar.
We already know that you’re a habitual liar since they did no such thing.
The definition of NBC ruled is Minor was set. WKA merely expanded upon possible different permutations of NBC, functional equivalents. Yes, there are only 2 paths, birth and naturalization. However, different permutations of NBC can be derived like Citizen at birth. A citizen at birth is not an NBC but it is functionally equilvalent to one because both derive themselves from the same operating principal that being birth. But NBC is different in form or definition as it one born of 2 US citizens. That’s why the court couldn’t state WKA was an NBC because he wasn’t. But since NBC and born citizen are derived from the same source, birth on the soil, they ruled that WKA was Citizen at birth, functionally equivalent yet a different citizen to that of NBC. That’s why in the ruling, the court kept saying WKA strong enough or as much like an NBC. He wasn’t one, but the court felt he functionally equivalent to one.
The Constitution states that only NBCs are eligible to be POTUS. It remains to be seen if SCOTUS will ever rule on the prospect of functionally equivalent citizens being eligible to be POTUS as well.
Again, you are stupid or simply lying. Those cases say no such thing.
You mean this definition?
“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 provides6 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,’7 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.”
So Minor does NOT agree with your 2 citizen theory, as long as you were born a citizen you’re eligible. If you gained your citizenship later via naturalization you aren’t. Only 2 types of citizens in this country. So Minor says that the President is eligible. Heck yeah, Minor defines it perfectly! Thanks john! BWAHAHAHAHAHA!!!!
Even the Birther Constitutional lawyer, Professor Herd Titus believes that the term NBC is ruled by the Wong Kim Ark decision. He as much as told the Justices that the decision would come down to either Justice Gray’s majority opinion or Chief Justice Fuller’s dissent opinion.
here is the Key Phrase in Wong Kim Ark:
“The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle.”
The court discussed the Operating Principle – Birth and Naturalization. These are operating principles in that are effectors or actions that establish a type of citizenship. The first is birth (The act of being born) and the 2nd is Naturalization (The Act of Congress granting citizenship).
Citizen at birth and NBC are functionally equivalent as it is stated. That is a child of an alien is as a much a natural born child. Why? Because are derived from the same operating principle – Birth.
However, An NBC goes farther in that it is one born to 2 citizens. However, this is not an operating principle but a matter of form and definition.
That’s why the court ruled that a Citizen at Birth and NBC were functionally equivalent. But they are not the same thing by definition.
It’s kind of like the analogy – WKA looked like an NBC, felt like an NBC, sounded like an NBC but his DNA was different from that of an NBC.
As such from a senses POV WKA is an NBC but from a form or definition POV WKA is NOT an NBC.
This is ultimately the reason why the court could not state definitely the WKA was an NBC only that he was a Ctizen at birth.
So if you ask me the question:
Is a Citizen at Birth the same as an NBC. The Answer is YES, they are Functionally equivalent because they are derived from the same source, Birth. But, are they the same – NO. An NBC is one born to US citizens.
“different permutations of NBC”
“functionally equivalent citizens”
Where did you come up with these phrases? Out of thin air?
A natural born citizen is a citizen who is not naturalized. In other words, any citizen who did not go through the naturalization process as established by congress is a natural born citizen. There are only two types of citizenships, natural born citizen and naturalized citizen. There is no third type of citizen.
This natural born citizenship can be established by either birth on United States soil or Jus Soli (Latin: right of soil) or birth through United States citizenship of a parent or Jus sanguinis (Latin: right of blood).
Justice Stevens articulated the source of United States citizenship in Miller v. Albright, 523 U.S. 420 (1998) when he stated:
There are “two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Within the former category, the Fourteenth Amendment of the Constitution guarantees that 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.” 169 U.S., at 702. Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress. Id., at 703.
Court decisions have uniformly held that persons born in the United States to alien parents are natural born citizens.
“No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President,” The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen. Lynch v. Clarke, 1 Sandf.Ch. 583 (1844)
In Look Tin Sing, 21 F. 905 (C.C.D. 1884), forty years after the Lynch’s decision, Justice Field in Look Tin Sing approved the court’s analysis in Lynch by observing:
In that case one Julia Lynch, born in York in 1819, of alien parents, during their temporary sojourn in that city, returned with them the same year to their native country, and always resided there afterwards. It was held that she was a citizen of the United States. After an exhaustive examination of the law, the vice-chancellor said that he entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural-born citizen; and added that this was the general understanding of the legal profession, and the universal impression of the public mind. Id at 909
Numerous cases that call native-born children of aliens a “natural born citizen” or simply use the term “natural born citizen” solely in reference to place of birth without explanation. See, e.g., Jacksons v. Sanders, 2 Leigh 109 (1830), Nyman v. Erickson, 170 P. 546 (Wash. 1918), State ex rel. Carroll v. Sup. Ct. of Washington, 193 P. 226 (Wash. 1920), Liacakos v. Kennedy, 195 F. Supp. 630 (D.D.C. 1961), Diaz-Salazar v. INS, 700 F.2d 1156 (7th Cir. 1983), DeTomaso v. McGinnis, 970 F2d 211 (7th Cir. 1992), Mustata v. US Dept. of Justice, 179 F.3d 1017 (6th Cir. 1999), Sumiye Umeki Yamauchi v. Rogers, 181 F. Supp. 934 (D.C. Cir. Dist. 1960), Martinez-Madera v. Holder, 559 F.3d 937 (9th Cir., 2009).
Except, there are only 2 types of citizens, as put forth by your favorite case Minor. Therefor, citizen at birth is the EXACT same as NBC and eligible. That’s why Minor NEVER states that in order to be an NBC you MUST have citizen parents, but if you’re born a citizen you are eligible for the Presidency. It’s all there, in black and white. Born a citizen, NBC and eligible. Naturalized, you are not. Easy peasy.
Nonsense. You are cherry-picking one ambiguous phrase which says children of aliens and children of citizens are citizens “by operation of the same rule” which it said was the English common law. If controlled by operation of the same rule they are not different types of citizens. The quote is of Horace Binney whose entire paper was based upon the notion that we adopted the English common law and that natural born subject meant the same thing as natural born citizen. Just because a court call someone a citizen rather than a natural born citizen does’t mean they are saying they are not natural born since a natural born citizen is also a citizen. Minor, for example, repeatedly called native born children of citizens just “citizens” rather than natural born citizens. In fact, it only called Virginia Minor a citizen. Thus, you are dishonestly trying to read a meaning into an ambiguous phrase that is simply not there.
If you were honest, you would look at the rest of the case which said over and over and over that we adopted the English common law and looked to the definition of natural born subject.
“[t]he Constitution of the United States, as originally adopted, uses the words ‘citizen of the United States,’ and ‘natural-born citizen of the United States…[t]he Constitution nowhere defines the meaning of these words… “[i]t 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….[t]he interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”
“every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”
“The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.”
“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 the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.”
“The term “citizen,” as understood in our law, is precisely analogous to the term “subject” in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a “subject of the king” is now “a citizen of the State.”
“And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.”
So are you being dishonest or stupid?
Or both?
The phrase you quoted is actually Gray quoting an essay by Horace Binney written in 1853. Gray went through a list of writings on citizenship to lay background for his decision. In the same essay Binney also writes:
So Binney himself agreed that under our own laws [the laws of the United States] birth within the limits of jurisdiction makes one a natural born citizen [as opposed to France where it didn’t.]. Your imaginary distinction thus evaporates when you read the rest of Binney’s essay. This isn’t a new argument. It has been made by Apuzzo and Donofrio and is not supported by any serious scholar.
—-
Those two phrases really struck me too! Kinda reminds me of “separate but equal”…
The Venus: “I think I cannot be mistaken when I say that, of all the views this subject by the most approved writers on the law of nations, the citizen of one country residing in another is not considered as incorporated in that other, but is still considered as belonging to that society of which he was originally a member.”
Do we have Marshall’s Vattel quote?
Did Obama’s own website state he was born a British Subject?
Cicero penned a man cannot be a citizen of two cities. Roman law a child born to citizen mother and alien father was considered spurious born. This child was not a Roman citizen. A spurious born child was considered an unnatural born child.
What did Aristotle say who could be citizens of Athens? Was it similar to Vattel and Marshall? Citizen parents?
Well, you might be onto something there. I would confidently assert that Obama is not a citizen of Rome or Athens.
Yes, and this site has documented that in great detail:
http://www.obamaconspiracy.org/2009/04/is-president-obama-a-british-citizen/
However, I’d like to point out that the FightTheSmears description of the situation contains a phrasing that I bet they regret:
“As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children.”
It is true the act governed the status of Obama Sr.‘s children insofar as their British citizenship was concerned. However, it had no effect on the President’s U.S. citizenship, which was and always will be natural born citizenship.
Under Roman law you could be crucified for sedition.
“A man must be naturalized to make his children such” James Madison. A citizen.
The subject he was talking about was domicile and he didn’t use the term “natural born.” Are you retarded? This has been pointed out again and again. The case and the quote has nothing to do with citizenship and hence cannot be authority on such point. It is also a dissenting opinion which means it is not authority. No legal authority ever has cited The Venus on the subject of citizenship as it has a quotation on domicile that includes extraneous statements about citizenship that have nothing to do with the case and hence are not part of the case. Try asking a 1st year law student to explain this to you before you post more gibberish. And Marshall did talk about citizenship in one case:
‘
“Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of that character otherwise than in such manner as may be prescribed by law, is a question which it is not necessary at present to decide.” Chief Justice Marshall, MURRAY V. THE CHARMING BETSEY, 6 U. S. 64 (1804).
Sounds like jus soli. To keep saying Marshall endorsed Vattel is simply a lie.
Please provide proof that James Madison wrote or said this. Anonymous letters to the editor of a newspaper do not count.
It is my claim the spurious born Obama is not a 14th Amendment citizen and he’s not a natural born citizen. It does not matter if he was born in Hawaii,
Obama is nothing more than a perpetual inhabitant permitted to stay here. He’s like the Roman Peregrines.
He cannot be a citizen in any Republic in history. This man was illegally elected who could not attend the Constitutional Convention, could not sign the Constitution and the Declaration of Independence.
He cannot quote the Gettsburg Address…”our forefathers” He’s not a part of “we give to our posterity” in the Preamble.
“a nation/country cannot perpetuate itself unless it’s citizens are born from citizens, a country should desire this for its own preservation” Justice Daniel quoting Vattel
More from Justice Daniel:
“Now, the following are truths which a knowledge of the history of the world, and particularly of that of our own country, compels us to know—that the African negro race never have been acknowledged as belonging to the family of nations; that as amongst them there never has been known or recognised by the inhabitants of other countries anything partaking of the character of nationality, or civil or political polity; that this race has been by all the nations of Europe regarded as subjects of capture or purchase; as subjects of commerce or traffic; and that the introduction of that race into every section of this country was not as members of civil or political society, but as slaves, as property in the strictest sense of the term.”
Daniel found the birthers’ favorite passage from Vattel useful for the purpose of denying citizenship based on race or servitude. It’s of no use at all in the 21st century.
The Federalist papers were anonymous but they’re valid, Obama’s Hawaii birth was in a newspaper.. McClure was born jus soli but he was not a citizen. Madison was President and his administration denied McClure’s being a citizen.
What an utterly despicable canard.
The Venus wasn’t a citizenship case and doesn’t support the two citizen parent claim.
Well done, john. That is the most brilliant legal analysis I’ve ever seen on this site. You should contact Orly and Klayman and Van Irion and suggest they file a motion for reconsideration in one of their dismissed cases. Share it on BirtherReport. Get Volin to put it in Sheriff’s kit version 1.8.5.
The subject is Justce Daniel writing natural born citizens are born to citizen parents, Bringing up slavery is a Strawman
Justice Daniel’s majority opinion disqualifies Barack Obama being a legal president not because of his race but his reputed father was not a citizen.
This is very compelling.
Bringing up slavery in a discussion of Dred Scott is a straw man?
Sigh…
John…. it’s not about physics……..
I know you want to try to complicate the issue because complication breeds confusion, and confusion is the only tool birthers have to lay their hopes on.
Unfortunately for you it’s not physics, and it’s not complicated.
One is a citizen, when one has the nature of a citizen.
One can obtain the nature of a citizen at birth, or if one does not have the nature of a citizen birth one can acquire that nature at some later date, by some process.
If one has the nature of a citizen at birth, then one is natural-born
If one does not have the nature of a citizen, but undergoes some process to gain it, then one is natural-ized.
See? Simple.
Please do tell all your friends (especially the black ones, if you have any) that you believe Obama is ineligible because you think Dred Scott is still the law of the land.
We’ll wait over here.
And, btw, dumb(bleep), what part of “Mr. Chief Justice TANEY delivered the opinion of the court.” did you not understand?
The problem Obots have is Wong Kim Ark was never ruled a “Natural Born” Citizen. Obots try to submit authorative sources to the meaning of Natural Born Citizen but the court in Minor had already addressed that as stating that outside the definition of Natural Born citizen which is born on soil to 2 citizens, scholars have tried to argue otherwise. The Minor Court acknowledged that fact but chose not to settle the issue. In Wong Kim Ark, The court ruled that WKA was a functionally equivalent citizen to that of a Natural Born citizen (Wong Kim Ark was Strong Enough to be a Natural Born subject. Wong Kim Ark is as much a citizen as a Natural Born citizen.) Even assuming the Obots that there are only 2 types of citizens, Natural Born and Naturalized, it would have been impossible to establish Wong Kim Ark’s citizenship any other way since only Natural Born and Naturalized existed. Ergo the court ruled Wong Kim Ark to be a Citizen at Birth which is a functionally equivalent permutation of a Natural Born Citizen – Meaning it is derived from the same operating principal, birth but Natural Born Citizen is one born to 2 Citizens. (Basically a 3rd Class of citizenship was derived.)
So You have 3 Classes of Citizenship:
1. Naturalized
2. Natural Born = Native Born (Citizen at Birth) but different in definition as it is one born to 2 Citizens.
The problem birthers have is they never bothered to read the case nor the basis for it. The district court ruled Wong Kim Ark a Natural Born Citizen the supreme court upheld the lower court ruling. Contemporary lawyers understood what the majority opinion was doing in that they thought the ruling meant those like wong kim ark would be eligible. Just as the dissenting justices knew that the opinion of the majority would make people like Wog Kim Ark elligble.
Minor didn’t address natural born citizenship and specifically said they weren’t going to. Nowhere did Minor say Virginia Minor was a natural born citizen nor did they mention the status of her parents. There is no such thing as an equivalent of a natural born citizen. You’re either a natural born citizen or naturalized citizen. He couldn’t be naturalized.
except, john, the Minor court stated there was only TWO classes of citizens. Sorry, no third type except in your mind. 😀
There is a 14th amendment case before the US Court of Appeals, DC Circuit (oral arguments heard today, 2/9/15). Tuaua v. United States asks the question does birthright citizenship extend to children born in American Samoa to non-citizen parents.
Several amicus briefs have been filed including this one by Constitutional Law Scholars:
https://www.scribd.com/fullscreen/223725177?access_key=key-n99faOsx8XVgkE2kuIBZ&allow_share=true&escape=false&view_mode=scroll
Anyone could use the name – Publius. You cite it as definitively being Madison.
Also your facts are not completely true.
McClure received a US Passport from the US Minister in London “confessing him to be a native citizen of the U.S.”
Secretary of State Monroe sent a letter to the French telling them that McClure was a US citizen.
The most we can derive from the McClure case is that different US Ministers had different opinions.
BTW, the US Minister to France was General John Armstrong Jr. and he had an ulterior motive to have McClure arrested. In an earlier letter to Madison, Armstrong said that McClure was conspiring with the United States Consul at L’Orient, Aaron Vale to purchase Florida before the US could purchase it from Spain.
The language that you cited in Venus 12 U.S. 253 (1814) was not part of majority opinion by Justice Washington but rather it was the concurring and dissenting opinion by Chief Justice Marshall in which Justice Livingston concurred. As such, the opinion of Chief Justice Marshall regarding Vattel was NOT THE OPINION OF THE COURT but rather his own opinion. Under the doctrine of stare decisis, an opinion by the majority is considered mandatory authority that is binding on lower courts; however, opinions expressed as concurring opinions are not mandatory but may be considered persuasive authority but they are by no means binding on lower courts.
In this case, Chief Marshall’s concurring opinion is not mandatory authority since it was not the majority opinion but at best it was persuasive authority.
One of the best indicators that a concurring opinion was considered persuasive authority by later courts would be for these later courts to cite Chief Justice’s concurring opinion. However, a search failed to show that any subsequent federal cases citing Chief Justice’s concurring opinion.
As such, Chief Justice’s concurring opinion has never been cited by later court cases and the only conclusion to be drawn is that Chief Justice’s reliance on Vattel’s definition of natives who are born in the country requiring two parents who are citizens has never been used as persuasive authority by later cases.
As a side note, Justice Story concurred with the majority but failed to concur with Justice Marshall
Quoting James Madison?
What about this:
What is compelling is case law since 1608 has established that child born of aliens in a country is a natural born citizen of that country under the common law principle of jus soli.
A natural born citizen of the United States can have parents of different nationalities as long as the natural born citizen was born within the jurisdiction of the United States.
English common law doctrine Jus Soli establishes the legal principle that children of aliens can be considered natural born citizens of the place where they are born.
This doctrine was established by Justice Coke in the Calvin Case in 1608 in which he observed:
“Sherley a Frenchman, being in amity with the King, came into England, and joyned with divers subjects of this realm in treason against the King and Queen, and the indictment concluded contra ligeant’ suae debitum; for he owed to the King a local obedience, that is, so long as he was within the King’s protection: which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue here, that issue is a natural born subject” Calvin’s Case, 7 CO. REP. 1a, 6a, 77 ENG. REP. 377, 384 (K.B. 1608).
Blackstone recognized and affirmed Chief Justice Lord Coke’s opinion in Calvin’s Case in 1608 that children born of aliens within the dominions of England were natural born subjects when he wrote: “The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.”
(Commentaries of the Laws of England (1765)
Moreover, Blackstone has been acknowledged as being influential in the development of protection of rights found in the Constitution. “Blackstone, whose Commentaries probably did much to influence the thinking of American lawyers at and before the time of the framing of the Federal Constitution.” United States v. Green, 140 F. Supp. 117, 120 (SD NY 1956)
“Blackstone’s Commentaries are accepted as the most satisfactory exposition of the common law of England. At the time of the adoption of the federal Constitution, it had been published about twenty years, and it has been said that more copies of the work had been sold in this country than in England, so that undoubtedly the framers of the Constitution were familiar with it.” Schick v. United States, 195 U.S. 65, 69 (1904)
As such, since 1608 the status of children born of alien parents as being natural born citizens of the place of birth has been established as a legal principle that has not been changed or altered.
Oh, my. So blacks can’t be President? How is that not majorly racist? What about women?
Both can be citizens of this republic.
No, it didn’t: it said their was disagreement about whether that actually was the definition.
The Wong Kim Ark court ruled it was not.
you do realise that both george washington and madison also held french citizenship?
obviously not – and it holes your bullcrap below the waterline
do feel free to do a dervish imitation to get round that one
One problem with using the Dred Scott decision in formulating a modern definition of ‘citizen.’ It’s called the 14th amendment.
As you see, you bury your non sequitur somewhere in your train of argument and this time even in something that explicitly forbids such a hypothetical (only something like “even assuming there are only two types of citizens, Obama is not an NBC because…” would work).
Why not? He has an American mother who had an American father who was, therefore, “his forefather”.
Are you saying that only the descendants of the Founders can be NBC?
Also, last I checked, “quoting the Gettysburg address” was not part of the eligibility requirements of the Constitution.
Dancing Rabbit/Dragging Canoe/eVatte eventually returns to his racist/bigoted statements. It’s his thing.
First, in Ancient Greece as in Ancient Rome, as in Ancient France and as recognized by Vattel, a child born of a citizen father was a citizen and not spurious, as you claim. No one here has ever disputed that fact.
The point here is, it only took one parent, the father.
Once we have established the indisputable fact that there never was anywhere recorded at any time a two-parents requirement, we can them address the matter of WHICH parent has the upper hand, as it were.
Fortunately, History as well as the laws of France, Germany, etc. are there to provide us with precedents.
Starting in the mid-to-late 19th century, the mother was granted the legal power to transfer her citizenship to her child in the event that the child was born out of wedlock.
What is important here is that the nationality of the father did not matter in the least, and the child inherited the same rights and obligations as any citoyen naturel of the mother’s country.
It took until the 20th century for the father and the mother to be placed on an equal footing before the law.
Obviously one cannot evaluate Obama’s situation by the legal standards of Ancient Rome or Monarchic France; you have to ask yourself what his status would be in jus sanguinis country in 1961. As i tried to explain to Adrian Nash (in vain because he is an imbecile), the answer is simple and obvious: his father’s Kenyan nationality would have zero impact and he would be considered just as any other natural born citizen.
The problem with Vattelians in their argument that the term Natural Born Citizen is founded on Roman or Civil Law instead of English Common Law is that their argument demonstrates their disregard that the Constitution provisions are framed in the language of the English Common Law and their argument ignores the historical development of Anglo-American jurisprudence that is rooted in the English Common Law.
Courts have recognized that the drafters of the constitution of whom most were lawyers were influenced by the principles and history of the common law that we inherited from the English. “The principles and history of the common law were well known to the framers of the Constitution and the members of the First Congress; it was from that system that their terminology was derived; and the provisions of the Constitution and contemporaneous legislation must be interpreted accordingly.” Southern Pacific Co. v. Jensen, 244 US 205, 230 (1917)
Moreover, Chief Justice Taft stated in Ex Parte Grossman, 267 U.S. 76, 108-09 (1925):“The language of the Constitution cannot be interpreted safely except by reference to the common law and British institutions as they were when the instrument was framed and adopted.”
Since the drafters of the Constitution wrote it in the language of the English common law then according to statutory construction that unless otherwise defined in the Constitution, words are to be taken at their ordinary and contemporary meaning.“ A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 US 37,42 (1979).
Moreover, if the use of words in the Constitution had a common law meaning
then the courts must infer the incorporation of this common law meaning unless the language of the Constitution compels a different meaning.
“[G]uided by the principle that where words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country they are presumed to have been used in that sense unless the context compels to the contrary.” Standard Oil Co. of NJ v. United Sates, 221 US 1, 59 (1911)
Furthermore, if words were created not by positive law but rather by judicially created concept then any interpretation of those words other than their common law meaning must be specific and clear. “The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific.” Stillians v. Iowa, 843 F.2d 276, 280 (8th Cir.1988)(internel citations omitted)
In other words, If drafters of the Constitution used words in the Constitution that have a common law meaning then it is PRESUMED that drafters intended common law application of the words UNLESS there is language in the Constitution that intended a contrary interpretation of the words.
As such, the term natural born citizen is a derivation of the term natural born subject that was a judicially created concept as articulated by Blackstone in his Commentaries of the Laws of England (1765) then UNLESS the founding fathers intended a different meaning other than the common law rule meaning of natural born citizen it was the responsibility of drafters to incorporate this different meaning.
The failure of the drafters to indicate a different meaning other than the common law meaning of natural born citizen in the Constitution demonstrated that the drafters intended to incorporate the established common law meaning of natural born citizen.
A Vattelian would argue that citizenship is only derived from the father. That argument stopped being valid in the mid-19th century in our countries.
A faux-Vattelian argues one needs both parents to be a citizen. That argument is rubbish, and was rubbish even under Rome. No society that i know of has ever required a two-parents system.
Obliged Friend: What part of “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside” do you not understand? Obama was born in Hawaii, which was and is a state of the U nited States. He was “subject to the jurisdiction thereof” because he was not a member of either class not subject to the jurisdiction — that is, the offspring of foreign diplomats and invading soldiers.
It’s just amazing that birthers endlessly repeat thoroughly discredited memes with no acknowledgement of their debunkings. For instance, take John — please. He keeps harping that the Minor case defined natural born citizenship to exclude people born here to foreign parents. whereas the plain language of the majority opinion said that it was NOTNECESSARY for the court decide. The court did not go on to say, “Nevertheless, we shall do so.” And had it done so, the result would have been dicta, not binding precedent.
Obliged Friend should be a lilttle embarrassed that he labeled a concurring opinion — also not binding precedent — as the court’s majority opinion in Scott v. Sandford. And to top it off the Dred Scott case was one one of the court’s most ignominious decisions ever, upholding and justifying slavery and declaring that persons of African descent could never be citizens of the U.S.
Obliged Friend says mention of slavery is a straw man. But that’s precisely what the Scott case is all about, and no part can be separated from its sordid central message.
And of course, the 14th Amendment obliterated the Dred Scott decisison, whether you believe correctly that Chief Justice Taney’s was the majority opinion, or — like Obliged Friend — incorrectly, that Justice Daniel’s was the majority opinion..
Many birthers keep proclaiming that young Obama would have lost any U.S. citizenship in Indonesia because that country did not allow dual citizenship. Multiple problems with that: Firstly, it is settled law that a children of tender years cannot renounce U.S. citizenship, and per Perkins v. Elg, no parent, guardian or any other adult, can do so for them.
Secondly, it is well settled that every soverign nation on earth gets to decide, exclusive of input from any other country on earth, who can and cannot be its citizens. Thus Indoneisa could not have declared the pre-teen Obama a citizen by simultaneously stripping him of his U.S. citizenship.
Some years ago, some birther was going on about Justinian code. I somehow recall going back and finding that, if the father was absent, the the citizenship fell to the mother. I don’t have time to dig it up this moment.
The birther then changed the subject with no acknowledgement.
the birthers’ theory is that Obama, being a minor, somehow managed to renounce his United States citizen when he moved to Indonesia with his mother and Indonesian step father. However, that theory has problems since the language in 8 U.S.C. 1481, the statute that governs renunciation of United States citizens, requires the person to “voluntarily perform” with the “intention of relinquishing United States nationality.” The birthers have to claim that a CHILD under the age of ten (being the age that Obama left Indonesia to Hawaii to live with his maternal grandparents) had the necessary mental capacity to understand that he was relinquishing his United States citizenship. Here in the United States, we legally protect minors in contract law, by not permitting them to sign contracts is so as to protect the minor from their lack of maturity. As such, the question is presented: If under contract law, Obama being a minor was unable to sign a contract then how could it be possible that he would have the maturity to relinquished his United States citizenship?
It bears repeating over and over again.
A child born in the United States does not lose his or her U.S. citizenship by moving to another country. Moreover if the other country does not recognize dual citizenship then the child’s place of birth will be his or her sole citizenship.
The other country’s nationalization laws do not pre-empt United States citizenship laws regarding its citizens; in other words, a foreign country’s nationalization laws does not strip a United States citizen of his or her citizenship.
The only way a United States citizen can have his citizenship revoke is by doing any of the proscribed acts listed in 8 U.S.C. 1481. These proscribed acts required the United States citizens to have attained the age of eighteen or committed an act of treason and being convicted of treason.
In this case, Obama being under the age of EIGHTEEN and having not been accused and tried for treason against the United States while he was living in Indonesia did not lose his United States citizenship.
What the birthers failed to understand is that the only way a natural born or naturalized citizen can have his or her United States citizenship revoked is by the citizen doing any one of the proscribed acts listed in 8 U.S.C. 1481. If they took the time to read this statute they will realize that a MINOR can’t renounced his or her United States citizenship because those acts required either the citizen have attained the AGE OF EIGHTEEN or have been tried and convicted for TREASON. Since Obama had neither attained the age of eighteen nor was he tried and convicted of TREASON.
The birthers have to claim that a CHILD under the age of ten (being the age that Obama left Indonesia to Hawaii to live with his maternal grandparents) had the necessary mental capacity to understand that he was relinquishing his United States citizenship. Here in the United States, we legally protect minors in contract law, by not permitting them to sign contracts is so as to protect the minor from their lack of maturity. As such, the question is presented: If under contract law, Obama being a minor was unable to sign a contract then how could it be possible that he would have the maturity to relinquish his United States citizenship?
Madison never said that. They are quoting an anonymous writer the idiots Donofrio and Apuzzo say is probably Madison with no evidence at all. They fail to point out that Madison’s administration made clear jus soli was our law in their official response to France. Gee, I just can’t understand why the courts keep laughing at the arguments of these clowns. And anyone who keeps saying Justice Daniel’s opinion in Dred Scott was a majority opinion or that he adopted Vattel’s definition is simply a moron and not worthy or responding to.
They also fail to explain why the US Minister to London issued McClure a US passport based on his being a native citizen of the US. And why the US minster to France Gen John Armstrong Jr. refused to honor it.
There is a backstory to the whole McClure affair that begins with this 1807 letter by General John Armstrong to James Madison.
“Aron Vail [US Consul] of L’Orient. I will say nothing of this man’s bankruptcy both of fortune & character (which have been long known) but of an Act of recent date which ought alone to remove him. You will find it with some other circumstances with which it is connected, in the sub-joined extract from a letter of mine to Mr. Ewing of Madrid of the 31st. of August.”
“There is now at Madrid a naturalized American, with respect to whom and his business, it becomes my duty to put you on the alert.This Man’s name is McClure. He is at once the Cap. of an American registered Ship and a proprietor in East Florida, characters not very reconcileable. Professing to have much intimacy with the Prince of Peace and a great variety of means to accomplish his objects with that Minister, he organized (as I am credibly informed) while here, a society for the purpose of out-bidding the U. S. in the purchase of the Floridas. The extent to which they proposed to go was eleven millions of dollars, ten of which were to be given to Spain and one to the Prince of P___e as a doceur. The subscription was left here to be filled, while he proceeded to Madrid & prepared things and persons for it’s arrival. This information was given by A. Vail, a consul of the U. S. for the port of L’Orient, to a person of respectability whom he invited to join in the Speculation & who communicated it to me. Vail is the Agent of McClure in prosecuting a prize [The Horizon] cause here. You will best know, what use can be made of this discovery at Madrid.”
http://rotunda.upress.virginia.edu/founders/default.xqy?keys=FOEA-print-02-01-02-2105
McClure and Vale were involved in land speculation in Florida.
From the Alexandria Herald article:
“On the 12th April, 1810, an order was issued by the Minister of War, directing, “that in consequence of information to (him) from the minister of general police, and which he has received from the Minister plenipotentiary of the U. States, Mr. James McC. should be detained in France as an ‘English prisoner of France.'” Accordingly, he was arrested at L’Orient , sent under parole, and placed under surveillance at Tours. Gen. Armstrong would not interfere in his behalf.”
McClure was arrested in L’Orient [where Vale was US Consul], based on information given to the French by Armstrong.
Did Armstrong have a reason to want the French to arrest McClure? Maybe to get him out of the way?
Your analogy is wrong, even if your ideas are correct (and they are not).
Even if we grant, for the sake of argument only, that NBC and CAB are two different things, then we must still grant that an NBC is also a CAB. Yet Ice cannot also be flowing. Now as I wrote that previous sentence my mind shouted at me: “glaciers flow”. However, not all ice is in a glacier, but every NBC is also a CAB. So your analogy fails.
Maybe we could fix it then.
All water is a citizen. Every molecule of H2O is water no mater what state it is in, gas, solid, or liquid. Most water is liquid; most citizens are CAB having been born in born in the USA. Some water is ice; some citizens are CAB having been born overseas to citizen parents. Some water is vapor; some citizens are Aliens at Birth (AAB), not CAB and have to be naturalized to become citizens.
Now consider that the Constitution is the Sun, Congress is the condenser coil.
Ice requires only the warmth of the Sun or even just the mixing into other liquid to become drinkable. CAB’s need only the Constitution or the Common Law to be Natural Born Citizens.
Vapor requires the procedure of condensation to become drinkable. AAB requires the procedures outlined by Congress to become citizens.
My version has problems too. The opening condition is that all water is all citizens, however vapor is water, aliens are not citizens. So maybe it needs to be revised to something water that can be made drinkable by nothing more than the warmth of the sun (that is, frozen or already liquid) represents all citizens, while water that requires a condensation process, represents aliens. That’s better I think.
There is still a problem in that once you have condensed water vapor to liquid water, you cannot tell it apart from any other liquid water, so there is no provision for natural-born citizen versus natural-made citizen.
By the way, the set of all “Natural-born Citizens” is congruent with “Citizens at Birth”. I know you want to imagine that they are somehow different, but that is not U.S. law and it never has been. That is the definition of NBC: citizen at birth (or citizen from birth, same thing).
You may want to insist on some kind of distinction between the different phraseology, but those differences are meaningless in U.S. law. 100% meaningless. You can argue until you are blue in the face that you think it should be different, that is fine – you are entitled to your opinion – but that argument does not change the reality.
There are two, exactly two and no more, kinds of citizenship under U.S. law – natural-born and naturalized – and this has been the definitive settled case law for 140 years (Minor v. Happersett, 1875). Similarly, the fact that CAB and NBC are congruent sets has been definitive settled case law for 117 years (USA v. WKA, 1898).
This is the reality of U.S. law; that fact that you don’t like it, or the fact that you just want to hear yourself talk (read yourself in print – whatever), or the fact that you just want to poke sticks into ants nests to see what happens is of no consequence to the reality of settled law.
john, don’t attempt analogies. You’ll just hurt yourself.
“The 4th para. of the Act of Congress of 1802, which provides that the children of citizens of the U.S., born abroad shall be citizens of the U.S. applies to those only whose parents were citizens of a state, as such, after the union had commenced and not parents born in a state when a colony before the adoption of the Condtitution.” 16 Mass 230 Manchester v Boston Sup Court Mass 1819
Do you have any idea what that means?
Forefather is not in the Gettysburg address. Do the Dunhams go back to the Revolution? It’s clear Obama is not a Native American. A native being a descendant of the original citizens.
As I pointed out in the thread which Adrien Nash has hijacked, whether Obama’s father was subject to the jurisdiction is irrelevant, because he was neither a diplomat nor an invading soldier. All that matters is that the child is born in the U.S. while subject to the jurisdiction of the U.S. The 14th Amendment says nothing about parents.
Diplomatic immunity is granted to the children of diplomats at birth, so they.are not subject to the jurisdiction of the U.S, But even if Obama’s father was somehow immune from jurisdiction because of his status as a foreign student, that immunity was not passed along to his son.
Despite what I sometimes appear to imply I am NOT an expert on all matters French, and I knew nothing about this story; however, the town in question is spelled “Lorient” without an apostrophe, and was always spelled that way since it was founded in 1709.
It is not a very big town or an important political center, so I doubt it was ever graced by the permanent presence of a US Consulate; if an American Consul as there on a mission, he almost certainly was not based in Lorient — Rennes or Nantes, perhaps, but not Lorient.
So these details of the account seem to be somewhat less than accurate.
Found it.
http://www.obamaconspiracy.org/2010/04/nairobi-paper-declares-barack-obama-was-born-in-kenya/#comment-41832
“He is also free born if his mother be free even though his father be a slave, and so also is he whose paternity is uncertain, being the offspring of promiscuous intercourse, but whose mother is free.”
The Birther was DraggingCanoe, aka, ObligedFriend
I don’t know what to tell you.
There may be some discrepancies in Aaron Vale’s exact title. In three of the 1803 Annuls of Congress he is referred to as the Commercial Agent at L’Orient.
“The Senate resumed the consideration of the message of the President of the United States, of February 14th, nominating Aaron Vale to be Commercial Agent at L’Orient.” (note the spelling of L’Orient)
General Armstrong list him as a US Consul in his letter to Madison.
Aaron Vale died in 1813 (in L’Orient). In 1816 James Madison nominated “Henry Wilson, of Maryland, to be Consul at L’Orient, in France.”
Virtually all historical references to Aaron Vale refer to him as the US Consul to L’Orient, France. Including this:
215. Aaron Vail, United States Consul at L’Orient, France, 1790-1813. He was as-
sociated with John Fitch in the latter’s steamboat enterprise. In an agreement be-
tween the two dated March 16, 1791, he called himself “Aaron Vail of the Kingdom of France, but at present in the City of Philadelphia, in the United States of America,
Merchant.” (Life of John Fitch, 320; Watson, HI. 445.) Fitch in his will, June 25,
179S, makes “Eliza Vale, Daughter of Aaron Vale, Consul of the United States at
L’Orient,” one of his legatees.
Vail died at L’Orient, France, 1813. His widow made application to the i8th Con-
gress for money expended by him in the discharge of his Consular duties, with ad-
verse result. This claim was pressed by his heirs to six successive Congresses, with
final favorable report April 13, 1842, passed and approved May 10, 1842. The Report of the House, 26th Congress, states that “The claimants’ ancestor was consul of United States at L’Orient, France, until he died there in 1813. While in office he drew upon officers of United States for money from time to time to defray charges of destitute sea-men, and he now stands charged with $6,305.69 balance of such moneys unaccounted for by him.”
Justice prevailed, however, and in 1842 his claim was recognized and settled. . (v. Lanman’s Dictionary of Congress ; Poore’s Catalogue, and U. S. Public Documents, 655, 744.)
https://archive.org/stream/reminiscencesofd00cony/reminiscencesofd00cony_djvu.txt
After he died his widow petitioned Congress (December, 1824) for reparations for the land he owned in Florida and apparently lost as a result of the treaty of 1819:
“Mr. Forsyth presented a petition of Elizabeth Vail, of the city of Washington, widow and administratrix of Aaron Vail, who was, at the time of his death, and for twenty year previous, Consul of the United States at L’Orient, in France, setting forth, that the said Aaron Vail was the owner of a claim to a large amount, which came within the provisions of the treaty between the United States and Spain, concluded on the 22d Feb. 1819, but that, previous to the receipt of the documents necessary to establish said claim, which were in Spain, the commission established under the 11th article of said treaty, expired, and praying such relief in the premises, as, in the wisdom of Congress, it may seem meet to grant.”
“Ordered, That the said petitions be referred to the Committee on Foreign Affairs.”
Well, you know, we Americans have been known to have our way with foreign words and place names.
To bring you up to speed here is a partial transcript of the Alexandria Herald article about the arrest of James McClure.
THE ALEXANDRIA HERALD
Monday, OCTOBER 7, 1811
CASE OF JAMES McCLURE.
The Case of this man has made a good deal of stir in the U. States — and has lately been received by a letter from a Mr. John Rodman, dated Paris, 4th, Jule, 1811, and addressed to the Editor of the United States Gazette
The facts appear to be these: James McClure was born in the U.S. , on the 21st of April, 1785. Some months after his birth (that is, on the 30th Feb 1786) his father was duly naturalized, under the laws of the State of South Carolina.
The son remained in the U.S. until the year 1795 when he was sent to England for his education. He has not since returned to this country; but resided for some years in England, and then made a trip to Holland and some other parts of the continent. His father also has left the U.S. and returned to his native country: G. Britain.
Some time in the year 1807, Mr. James McClure, dispatched from England, the famous ship “Horizon”, destined to Lima, which was shipwrecked on the “rocks of Morlaix,” and, as is generally known, was the very first case to which the Berlin Decree was put into execution against the U.S. Mr. McC. went to France to reclaim his property of the ship; carrying with him a Passport from the American Minister of London, confessing him to be a native citizen of the U.S.
On the 12th April, 1810, an order was issued by the Minister of War, directing, “that in consequence of information to (him) from the minister of general police, and which he has received from the Minister plenipotentiary of the U. States, Mr. James McC. should be detained in France as an ‘English prisoner of France.'” Accordingly, he was arrested at L’Orient , sent under parole, and placed under surveillance at Tours. Gen. Armstrong would not interfere in his behalf.
On the 16th March, 1810 he writes him that the certificates of his father’s naturalization, and of his own birth and baptism, were not sufficient; they only prove that his father is an American Citizen, and that he himself was born in the US, and that “the evidence that will reach the case & substantiate (his) claim, is a certified copy of the act of S.Carolina, ‘naturalizing’ (his) father, provided that the “act naturalizes also the children of (his) “father born before his own date:”
Mr. Rodman afterwards met with Mr. McClure at Tours, and being touched with his situation, determined to intercede with Gen. A. on his return to Paris. The general was however about to leave France — and Mr. R. thought fit to address himself to Mr. Russell, Charge d’affaires at Paris.
In reply, Mr. R. tell him that, “Mr. McC must claim to be a citizen of the United States either under a law thereof, or under a law of the state of S. Carolina; that Gen. A. not considering the law of the U.S. to embrace the case of Mr. McC., required that he should show himself to be within the provisions of the state statute: that the words, ‘if dwelling in the U.S.’ appear to occasion the whole difficulty in deciding on the rights of Mr. McC. ” ‘Is this dwelling'” (continues Mr. R.) “to be at the time of the naturalization of the father, at or after passing the law, or the time of claiming to be considered a citizen? Gen. Armstrong, it seems, decided against the first, and the two last are conclusive against Mr. McClure. As I act under Gen. A. in this legation, it is not competent in me to admit appeals from his judgement.”
The case was resolved when the US Secretary of State James Monroe sent the following letter:
Joel Barlow Esq. Department of State
Paris Nov. 27, 1811
Sir
I have the honor to enclose several affidavits and certificates just handed to me by Mr. Cheves the Representative in Congress from the City of Charleston proving that James McClure now detained in France as a British Prisoner of War was born in Charleston since the Revolution. To these Papers is annexed a Certificate of W[illiam] Johnson Esq. one of the Justices of the Supreme Court of the United States before whom the affidavits were taken stating “that agreeable to the laws and usage of the United States, the said affidavits and Certificates are sufficient to establish the fact that James M McClure above named is a Citizen of the United States.” As such he must be considered by this Government. You will therefore interpose your good offices in his behalf and obtain his release from confinement as soon as possible.
I have [the honor]
James Monroe
Unfortunately copies of the affidavits and certificates referred to by SoS Monroe are not in the US archives. Any chance they might still exist in a French archive?
Apparently as late as 1866, by which time they’d figured out the correct spelling, there was a consulate at Lorient; one Leon Sellier being the consular agent:
https://books.google.com/books?id=BFpHAQAAIAAJ&printsec=frontcover#v=onepage&q=lorient&f=false
In 1804 or 1805 Jefferson was trying to send a large crate of seeds to Madame de Tessé by way of the U.S. consul at Lorient:
https://books.google.com/books?id=bR-h7jTBFA8C&pg=SL6-PA171&lpg=SL6-PA171&dq=us+consul+at+lorient&source=bl&ots=mNQXRKLTOd&sig=eS1qkaU4dtTqs6vszEJ7Qzgcx_o&hl=en&sa=X&ei=0pfbVLtLjK-CBM-Jglg&ved=0CCoQ6AEwAg#v=onepage&q=us%20consul%20at%20lorient&f=false
As I understand it, the port had important trading connections to the early United States.
How is this for coincidence:
In September, 1807 US Minister to France General John Armstrong Jr. writes a letter to James Madison about an American citizen named McClure who is involved with the US Consul to L’Orient in a land speculation deal in Florida.
In the same year, Armstrong was involved in failed attempts at negotiating with the Spain for the acquisition of Florida.
In 1806, James Bowden, the US Minster to Spain, had reported to Jefferson that Armstrong was involved in a land speculation scheme involving three million acres in Florida. Jefferson didn’t act on the accusation.
In April, 1810 McClure is arrest by the French after Armstrong refuses to help him.
In May, 1810 Armstrong writes a letter to Madison denying any involvement in a land speculation scheme in Florida.
“I have just been informed that M. Bowdoin (before he left Paris) in conjunction with M. Skipwith & by means which I shall take care to investigate, did obtain from an Irish ex-priest of the name of Somers a deposition, in which an attempt is made to implicate me in a land Speculation, connected with the then intended purchase of the Floridas, and conducted by Mess. Parker, OMealy and le Ray de Chaumont.”
M.Skipwith is Fulwar Skipwith who worked in France for the US government. He reported to Armstrong about the results of the case of The Horizon James McClure’s ship that ran aground off the coast of France in 1807. Later Skipwith returned to the US and in 1810 became the governor of West Florida.
BTW, the Alexandria Herald article mentions that McClure was visited in prison by John Rodman. I believe it was this John Rodman:
John Rodman (1775–1847) was a merchant in New York City by 1801. He spent three years in France before returning to New York City by 1812 to practice law. Rodman served as a major of artillery during the war of 1812 and in 1814 published a translation of the commercial code of France. He was appointed the state’s district attorney for the city and county of New York in 1815 and served until 1817, when he resigned and spent another year in France. In 1821 James Monroe appointed Rodman customs collector for the port of Saint Augustine, Florida, and he held this position until 1842. In Florida, Rodman continued to practice law and also served as an alderman for Saint Augustine and a prosecuting attorney for Saint Johns County. He died in New Jersey (Charles Henry Jones, Genealogy of the Rodman Family [1886] 34, 53–5; Longworth’s New York Directory [1801], 264; New York Public Advertiser, 26 Sept. 1812; Rodman, The Commercial Code of France, with the Motives, or Discourses of the Counsellors of State [New York, 1814]; Rodman to Monroe, 1 Oct. 1814 [DNA: RG 59, LAR, 1809–17]; Albany Gazette, 3 Apr. 1815; Rodman to Monroe, 27 Feb., 8 Mar. 1821 [DNA: RG 59, LAR, 1817–25]; JEP, 6:57 [28 Apr. 1842]; Terr. Papers, esp. 22:17, 50–2, 357–8, 360; New York Evening Post, 17 Feb. 1847).
That is true and for that reason it might indeed have warranted having a Consular Officer based there permanently. Obviously that did not last. 🙂
A rough analogy would have to have a French consul in, say, Norfolk.
The use of French apostrophes by Americans is very, er, random. One is sometimes inserted where there is none or discarded when there should be one; no surprise there.
The rest of the story is fascinating; I’m very grateful for your sharing it with me.
Perhaps in revenge for the French spelling of some of our American revolutionary heroes’ names when granting them French citizenship. )
Vail’s story is kind of interesting in itself. Jefferson didn’t seem to think much of him at first. In a February 21, 1791, draft memorandum on consular vacancies, Jefferson noted:
“Lorient. No new nor proper candidate. Vale [Vail], a bankrupt is the only one.”
http://founders.archives.gov/documents/Jefferson/01-19-02-0068-0002#TSJN-01-19-0125-kw-0007
Those archives also have Vail’s letter to Jefferson asking for the consular position, dated a week later:
http://founders.archives.gov/documents/Jefferson/01-19-02-0088
Vail’s involvement in the Fitch steamboat prospect is kind of interesting; after the collapse of the venture and Fitch’s death, Vail is reported to have shared Fitch’s design materials with Robert Fulton, who succeeded where Fitch had fallen short. Fulton acknowledged meeting with Vail, but denied that he ever saw Fitch’s designs. The account here of a January, 1815, hearing before the New Jersey state legislature on the originality of Fulton’s designs is a hoot:
https://books.google.com/books?id=cjbLxfBHFYIC&printsec=frontcover#v=onepage&q=aaron%20vail&f=false
(from page 215). There’s a document controversy over a purported original draft of a letter, that upon examination turns out to NOT be an original draft, but at best a “true copy” of the original draft…
Touché! 🙂
Yeah, but I could never stay mad at France, because Raving Rabbids. 😉
Reason #47 why I love France: their word for paper clips is trombones.