With any due respect owed to any cavemen (or cavewomen)
out there who may be ofeeeeended by that.
I'm not offended. I'm an ogre, not some smelly, stupid caveman.
Posted on 01/27/2012 10:02:09 AM PST by Danae
Yep, Politicians and voters.
Thank you. And I completely agree that digital certification of government information should be a major priority replete with failure tolerant security and verification protocols.
This issue of digital certification of government information needs to be drilled into fellow conservatives to be on par with such issues as Voter ID. Right now this issue is at most nascent.
Sometimes I wish we could go back to the days of my American ancestors when dealing with the likes to treasonous surreptitious tripe like Stanley and Malamud. It would be so simple; fast trial, conviction, sentence to hanging, rope, horse, stand them up on the back of the horse, lay the noose over their heads, then lead the horse away out from underneath them.
ahh us vs them.
aristocrat vs serf
blue line vs not blue line
crony and taxpayer
komisar and mere comrade
;-)
Not beautuful written. In fact, in his ignorance he has fatally made the case for the Obama by claming the 14th adopted feudal law of royalty rather than adhering to Natural Law as defined by the Declaration of Independence which is the foundation for ALL American law
The Constitution of the United States, as originally adopted, uses the words “citizen of the United States,” and “natural-born citizen of the United States.” By the original Constitution, every representative in Congress is required to have been “seven years a citizen of the United States,” and every Senator to have been “nine years a citizen of the United States.” and “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 Fourteenth Article of Amendment, besides declaring that
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,
also declares that
no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
And the Fifteenth Article of Amendment declares that
the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude.
The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it 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. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. [p655]
In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.
In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said:
There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The 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.
124 U.S. 478.
II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.
This fundamental principle, with these qualifications or [p656] explanations of it, was clearly, though quaintly, stated in the leading case, known as Calvin’s Case, or the Case of the Postnati, decided in 1608, after a hearing in the Exchequer Chamber before the Lord Chancellor and all the Judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin’s Case, 7 Rep. 1, 4b-6a, 18a, 18b; Ellesmere on Postnati, 62-64; S.C., 2 Howell’s State Trials, 559, 607, 613-617, 639, 640, 659, 679.
The English authorities ever since are to the like effect. Co.Lit. 8a, 128b, Lord Hale, in Hargrave’s Law Tracts, 210, an in 1 Hale P.C. 61, 62; 1 Bl.Com. 366, 369, 370, 374; 4 Bl.Com. 74, 92; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; Cockburn on Nationality, 7; Dicey Conflict of Laws, p. 173-177, 741.
In Udny v. Udny, (1869) L.R. 1 H.L. Sc. 441, the point decided was one of inheritance, depending upon the question whether the domicil of the father was in England or in Scotland, he being in either alternative a British subject. Lord Chancellor Hatherley said: “The question of naturalization and of allegiance is distinct from that of domicil.” P. 452. Lord Westbury, in the passage relied on by the counsel for the United States, began by saying:
The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status.
And then, while maintaining that the civil status is universally governed by the single principle of domicil, domicilium, the criterion established by international law for the purpose of determining civil status, and the basis on which
the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy, [p657] must depend,
he yet distinctly recognized that a man’s political status, his country, patria, and his “nationality, that is, natural allegiance,” “may depend on different laws in different countries.” Pp. 457, 460. He evidently used the word “citizen” not as equivalent to “subject,” but rather to “inhabitant,” and had no thought of impeaching the established rule that all persons born under British dominion are natural-born subjects.
Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said:
By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.
Cockburn on Nationality, 7.
Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics:
“British subject” means any person who owes permanent allegiance to the Crown. “Permanent” allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes “temporary” allegiance to the Crown. “Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.” “Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.
The exceptions afterwards mentioned by Mr. Dicey are only these two:
1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such [p658] person’s birth is in hostile occupation, is an alien.
2. Any person whose father (being an alien) is at the time of such person’s birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien.
And he adds:
The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person’s birth, it in theory, at least, depended not upon the locality of a man’s birth, but upon his being born within the jurisdiction and allegiance of the King of England, and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of, the Crown.
Dicey Conflict of Laws, pp. 173-177, 741.
It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore 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.
III. 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.
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html
I'm not offended. I'm an ogre, not some smelly, stupid caveman.
Subject to the jurisdiction is subject matter specific. One isn't under the laws of citizenship when one breaks the laws of speeding, but all citizens and foreigners are subject to the laws of speeding when driving in the jurisdiction of said laws.
But to put it more plainly, when one travels outside the US, one is “NOT” subject to the citizenship laws of the foreign nation and neither is any foreigner subject to the citizenship laws of the US, even though in both cases, both parties are subject to the local laws that keep peace & order to protect the lives of the persons who are in said society whether they are citizens of said society or not.
I just quoted at length, without comment, from a US Supreme Court opinion, with citation.
Natural born requires something more than being a citizen. Being a citizen who was born in this country may be that "something more". If he wants to argue that "something more" has to do with the parents' citizenship, that is fine. But the plain language of Article 2 and the 14th Amendment do not LOGICALLY prove the statement Donofrio is making. Neither do they disprove it.
I'm sorry, but you are incorrect. I'm looking at a copy of a recent Public law and it is "Certified by the Superintendant of Documents , United States Government Printing Office, certificate issued by GeoTrust CA for Adobe". This certification is on all recent public laws.
Truth is there is always someone on the other side of the tracks, liberals just haven’t figured out how to pick their parents or place of birth, yet. They do however sometimes lie about both.
I was born in a different time I guess because my whole state was on the other side of the tracks, and still is. Not one precinct voted for BHO2. No other state can say that.
The SCOTUS decision in Slaughter House(The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872), which Waite used in Minor and which Gray later cited in Elk(Elk v. Wilkins, 112 U.S. 94 (1884), but then for some unknown reason omitted in WKA, stated:
The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the Constitution, by which
“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,” and “The Congress shall have power to establish an uniform rule of naturalization.” Constitution, Article II, Section 1; Article I, Section 8. By the Thirteenth Amendment of the Constitution, slavery was prohibited. The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this Court, as to the citizenship of free negroes ( 60 U. S. 73; Strauder v. West Virginia,@ 100 U. S. 303, 100 U. S. 306.)
This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”; The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized
Both Justices Wait & Gray concurred that "subject to the jurisdiction" as it pertains to both A2S1C5 "AND" the opening phrase of the 14th, "born or naturalized" holds but one definition and that is but one allegiance, either at birth or upon acquiring citizenship through naturalization. Gray used the prior courts decision regarding the definition of natural born to define those born under the 14th. The word "natural" was not added to the 14th because it would have created a redundancy in the wording of the law because of the phrase in the 14th that states ", and subject to the jurisdiction".
I stand corrected, there is no LAW which mandates digital certification of government information. The Government Printing Office is leading the movement for that certification. But it is not being done under statute deleneated requirements. There is no law yet. Check out the government printing office, they have links there on it.
Fine, if you think your precision is some how adding to this discussion. I don’t think your precision is adding anything because Donofrio is ultimately referring to Obama who many if not most rightly or wrongly think was ‘born in this country’.
Again I repeat, Donofrio is not writing statute here but is rather making a contrast for the non-lawyer. Those that have followed Donofrio’s writings know that he is well-versed on all issues and logic, and they understand the context of his present commentary and illustration.
Donofrio illustrates his argument of the general not governing the specific by citing the 14th vs. the ‘Natural Born’ clause. He is using this illustration that ‘natural born’ is more than simply ‘born’. He is not using the 14th to infer that ‘natural born; has to do with citizenship of parents.
Donofrio is not arguing against the claim that Obama was born in August 1961 in Hawaii at a time that Hawaii was a State of the United States. He does not argue this because he has said in the past that it does not matter whether or not Obama was born in the United States.
Donofrio is arguing against those that are saying that it DOES MATTER that Obama was born in the United States because the 14th Amendment makes him a citizen and therefore eligible to be elected President.
“Section 1. 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.”
The above provision of the 14th Amendment is being used by supporters of Obama as superceding the ‘Natural Born’ clause. Donofrio says it does not supercede because this provision of the 14th is GENERAL whereas the ‘Natural Born’ clause is SPECIFIC and he argues that every lawyer understands the basics of statutory construction in that the general does not govern the specific. Therefore, there must be something more that is needed to qualify as Natural Born and that something is spelled out in Minor v. Happersett as well as English Common Law that colonial lawyers and office holders were steeped in.
To repeat and emphasize, Donofrio is not using the 14th to base his argument of what constitutes ‘Natural Born’. He is using Supreme Court precedent of Minor v. Happersett where the definition of ‘natural born’ is unequivocally determined to be a person born within the jursidictions of the United States to citizen parents.
To further repeat and emphasize, Donofrio is using the basics of law of statutory construction to dismiss the arguments of those using the 14th to say that Obama is qualified to be President.
You made the statement that it would be redundant to include the word ‘natural’ in the 14th. It is you that is making the argument that the 14th covers the Natural Born clause. If there is any logical flaw, it is in your wild inference that statutory construction does not apply to the 14th Amendment.
I didn't say Dred Scott was the only one. But I must say I'm not sure the 14th Amendment was intended to apply to Indians born on their reservations. These reservations, at least for a while, were not considered US soil.
ML/NJ
Thank you for posting this.
Danae, I understood your original post on digital certification as pertaining ultimately to needing a law. I do not think you need to ‘stand corrected’. Rather I think ‘In Maryland’ needs to be challenged on what appears to be troll like behavior, if not driven by a DC-Maryland bureaucratic mindset.
In Maryland seems to miss the context of the communication and jumps on missing content, and then uses the missing content to infer that your context was ‘flawed’. It’s kind of like telling someone they don’t know how to spell because of their typose....er....typos. It’s almost like saying all that you say is worthless because you were not explicit and precise in describing the context of your messages.
It’s perhaps more important challenge what In Maryland threw at you:
“Certified by the Superintendant of Documents , United States Government Printing Office, certificate issued by GeoTrust CA for Adobe”
Notice that the Agency ‘United States Government Printing Office’ is apparently using a contractor ‘GeoTrust CA for Adobe’ to perform the certification evaluation and issue a certificate. Now compare that to our previous discussion on this thread regarding Justia.com and others and their ties to Soros. Obviously ‘In Maryland’ does not connect the dots on digital security and its threat to the Republic.
And note that I have almost ignored the misspelling of superintendent in the above quote. But it does not surprise me that a government bureacrat or whoever wrote the quote above does not know how to spell. Years ago I turned down a GM-15 US govt position because they were more concerned about the caring and feeding of their incompetent employees than much of anything else. And I quickly saw that there wasn’t much I was going to be able to do about it either.
In Maryland has a 50% chance of being a fed gov employee because 50% of people in Maryland work for the federal government; the federal government being the largest industry in the State of Maryland, a truly dismal state of persons that spend their time nitpicking. And lest ‘In Maryland’ become inflamed here, they should know that I know of what I speak, having a mother born in Maryland with ancestors going back to when Maryland was a colony before there was ever a United States. My ancestors come from the Watermen of the Eastern Shore and my earliest ancestor is traced to an Irish colonialist in 1714. I was born along the coast of Virginia and my father in North Carolina but I know Maryland very very well. So my advice to In Maryland is to get a friggin life, you will be so much happier, and the easiest way to do that is get away from Maryland because otherwise you are going to find it tough to feel alive when everywhere you look there’s a GS neighbor or some such nearby. And the more you are exposed to DEADWOOD, the more you become dead. So there you have a nice personal attack to ponder over your government weekend.
“but then for some unknown reason omitted in WKA”
Incorrect. WKA overturned Slaughterhouse - which is rare, but they did so:
“Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the Fourteenth Amendment, made this remark:
The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.
16 Wall. 73. This was wholly aside from the question in judgment and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities, and that it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase is apparent from its classing foreign ministers and consuls together — whereas it was then well settled law, as has since been recognized in a judgment of this court in which Mr. Justice Miller concurred, that consuls, as such, and unless expressly invested with a diplomatic character in addition to their ordinary powers, are not considered as entrusted with authority to represent their sovereign in his intercourse [p679] with foreign States or to vindicate his prerogatives, or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers, but are subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside. 1 Kent Com. 44; Story Conflict of Laws § 48; Wheaton International Law (8th ed.) § 249; The Anne (1818), 3 Wheat. 435, 445, 446; Gittings v. Crawford (1838), Taney 1, 10; In re Baiz (1890), 135 U.S. 403, 424.
In weighing a remark uttered under such circumstances, it is well to bear in mind the often quoted words of Chief Justice Marshall:
It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.
Cohens v. Virginia (1821), 6 Wheat. 264, 399.
That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: “Allegiance and protection are, in this connection” (that is, in relation to citizenship),
reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of [p680] parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.
Minor v. Happersett (1874), 21 Wall. 162, 166-168.”
Also,
“The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country.
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases — children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State — both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin’s Case, 7 Rep. 1, 18b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors’ Snug Harbor, 3 Pet. 99, 155; 2 Kent Com. 39, 42.”
Now, one can argue that WKA was incorrectly decided and that its dicta should be ignored - as the WKA court rejected the Slaughterhouse decision. But what one cannot do is ignore it entirely, since no court will ignore it without being overturned on appeal.
I probably ought to add that I hope the Georgia court will rule Obama ineligible. Since that would leave states using two different standards - Indiana ruled he IS eligible - the political parties could file suit in federal court saying the equal protection clause requires a Supreme Court ruling on Obama’s eligibility.
I think the Court would be forced to take the case and to rule very quickly, and settle the issue for all time. And while we disagree on many things, I think we both would like to see a final, definitive ruling - not just conflicting dicta.
Slaughter House referred to the language of the initial Civil right act that stated
"All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."
There is not one word as to the political status of the parents, whether diplomat or not, Period. WKA did not overturn A2S1C5. In order for your illogical statement to even have a hint of truth, A2S1C5 would have had to have been amended and thus far, not such amendment language language is attached to it, nor does any other amendment, 14th included, refer to A2S1C5.
The fact is, prior to emancipation, slaves held political allegiance to no body but they did owe complete obedience to their master, thus they were under the political jurisdiction of the master. when they became free slaves who had been born with no political allegiance, they "naturally" became members of the society in which they lived if they so chose. Citizenship was never forced upon them and to my knowledge & research thus far, not one slave upon being freed was ordered to swear an oath of allegiance. Now if you can find me the language of a federal law that required them to do so, then you have an sound argument that the 14th was a naturalization act, but until it is produced, the freed slaves gained citizenship via the fact that they were born on US soil and did not owe allegiance to a foreign nation at birth.
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