You wrote:
“So far we have assumed that the conventional meaning of “natural born citizen” for those learned in the law in the eighteenth century was equivalent to the meaning of “natural born subject” in nineteenth century English law. But is this assumption correct?
No, the assumption is not correct. The British common-law was a relatively recent, 18th Century, abnormal departure from and in contradiction to the customary Law of Nations stretching back two millenia to the Roman Republic and earlier. The recent propensity to assume the 18th-19th Century English common-law practice of making the place of birth, jus soli, the method of determining status as a natural born subject equivalent to a natural born citizen is based upon widespread public ignorance and an erroneous confusion of the purpose and means of determining citizenship.
The place of birth, jus soli, is just one of many METHODS for determining ALLEGIANCE to a sovereign. There are many other METHODS which were used to determine ALLEGIANCE to a sovereiegn. Descent by blood, jus sanguinni, is another method used to determine allegiance to a sovereign. Descent from foreign parents, jus albinatus, was a method of denying allegiance to the sovereign in whose domains a person was born. In each circumstance, it is the allegiance which determines citizenship, and it is one or more of the methods which determines that allegiance.
A person natural born in the domain of a sovereign with parents of foreign citizenship and owing allegiance to another sovereign as a result of jus albinatus is the natural born citizen of the other sovereign, and is not the natural born citizen of the sovereign in whose domain the person was born. This was the actual law and practice in old France and many other nations at a time when England used jus soli as a method of claiming the allegiance of every person born in the dominions of the sovereign of England.
Upon the Revolution as of 4 July 1776, the United States of America abolished the British common-law and each state began to enact its own statutory citizenship laws in replacement of the former British common-law. The new statutory laws were modeled on a mixture of international law and custom as described by the works of Vattel and others of like background with respect to the Law of Nations. In every such law, the authors were concerned with allegiance to the sovereign State using a variety of methods including combinations of jus soli and jus sanguinni to determine the natural born allegiance of a person.
So when the phrase “natural born subject” or “natural born citizen” was used at the time of the origin of the Constitution, the true meaning of the phrase is “born in nature with allegiance to a sovereign” of this or another domain. As in old France, the sovereign owed the allegiance was not necessarily going to be the sovereign of the domain which was the place of birth, unless the place of birth was a domain of Britain.
The phrase, “natural born citizen,” as it was used in the Constitution was all about “natural born” allegiance and not about “natural born” place of birth. This is why the Founding Fathers understood exactly what they meant to say when they wrote the phrase into the Constitution for the purpose of excluding any person born with allegiance to a foreign sovereign from serving as Commander-in-Chief or being eligible to the Office of the President. As used by the Founding Fathers in the Constitution, the phrase means “a person born in nature with allegiance only to the United States of America.” Each of the thirteen States of the Union had enacted its own laws to determine who could and could not be a Citizen of that State and thereby also a Citizen of the United States. Since dual nationality did not exist at that time, no person born with allegiance to another sovereign could possibly also be “a person born in nature with allegiance only to the United States of America.”
Solum does state widely held assumptions correctly, even though these widely held assumptions are erroneous.
Follow the link at the end of the article, for the full text. It was written as an exposition upon John McCain's eligibility, or the lack of it.
My particular interest was the few paragraphs excerpted, dealing with sovreignty devolving upon the people, in the absence of a king, queen or lord, as per Chisholm v. Georgia, the first great case in Constitutional law, under Chief Justice John Marshall, who had cited Vattel.
So, thanks for the info, but I'm in agreement with your lengthy and well-reasoned reply. Review my posting history, and you'll see that I've replied numerous times, expressing many of the points you express here.
I’ve been trying off and on to locate some colonial statutes on citizenship but have had no luck. Do you know of any sites? I’ve searched but came up empty.
What I have read about the subject has been that English common law was the source of our citizenship laws.
If there’s ever a SCOTUS case, your argument would require that you produce evidence. So might as well get it now, right?
I will guess at your background, and mention that I've read seven or eight law review articles by presumably credible academics which assiduously avoid both supreme court case law, as well as even a reference to Vattel or Law of Nations. I'll point to one by Associate Dean for Research at Univ. of Illinois, another editor of the Harvard Law Review, only Lawrence Solum has actually published “Originalism and the Natural Born Citizen Clause”. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1263885
Solum acknowledges the Vattel definition, but sets up a straw dog by asserting that it is indeterminate because it depends up English Common law, with "subject" mucking things up. Solum never mentions John Marshall or or The Venus, or Minor or Bingham. He appears to be writing about “Originalism”, and mentions Scalia a number of times, dancing completely around the dozens of references in supreme court decisions to Vattel, and the several very explicit direct quotations in decisions citing Vattel. He also uses the Obama supporter ploy of quoting the 1790 Naturalization Act without noting that is was replaced. There are another half dozen such law review articles which, while not at written with quite the style, follow the same pattern.
Is this pay-to-play, the constitutional lawyers provide talking points should the issue become germane or viral?
I respectfully disagree. The Constitution means EXACTLY what it says i.e. a naturally BORN citizen.
Hello newbie....
WhiskeyX Since Aug 3, 2009