Open request to Senator Cruz

The Constitution requires that for you to be eligible to be president, both of your parents must be naturally born citizens. You do not meet that qualification, if I am wrong please straiten me out. If you get the nomination I promise you the democrats will do what the republicans are too scared to do.

he idea then arose that no number of years could properly prepare a foreigner for the office of president; but as men of other lands had spilled their blood in the cause of the United States, and had assisted at every stage of the formation of their institutions, the committee of states who were charged with all unfinished business proposed, on the fourth of September, that ‘no person except a natural-born citizen, or a citizen of the United States at the the of the adoption of this constitution, should be eligible to the office of president[.]

This goes to the point I've been making. Initially there was Jay's letter and other communication about requiring the President be a natural born citizen. Under the Birther proposed meaning of NBC neither George Washington nor any of his contemporaries would be an NBC. One can only marvel that they didn't acknowledge their term of choice excluded themselves.

The more reasonable view is they understood they were NBC, thus no issue to start, and that the 'or a Citizen' clause was later proposed for the benefit of the foreign-born Patriots. James Madison supplies the theory of a continuing local political community that would see the native-born as NBC after the change of government.

If the 'or a Citizen' clause was added to make the likes of Washington eligible, it's beyond bizarre that no Constitutional historian or legal scholar states that. It's a meaning Birthers are forced to adopt in order to make their "citizen parent" theory fit. That distortion is a clear indication of the problem with their NBC definition.

Naturalization most certainly does come into play. You can't become a 'natural-born citizen of something that doesn't yet exist, which is exactly WHY the Justice used the term 'entitled' and did NOT say 'natural born'.

It comes into play, yet none of the Justices make one mention of naturalization.

I submit you are for your own convenience reading something into the opinion that isn't there.

We weren't talking about Calvin's case.

We were talking about whether Justice Story subscribed to a jus soli view on birth citizenship. And you brought up the point you didn't think Story was (or would) accept a mere temporary presence to support the requisite allegiance. That Story cites to Calvin's Case makes Calvin's Case highly relevant and instructive as to both points.

First was Inglis entitled to claim citizenship due to being in the States . . . . Story said No to the first question.

No, he didn't. He said that he would be inclined to view Inglis as an alien. "unless he was born between 4 July and 15 September, 1776." This repeats what Story had just said earlier -- if Inglis was born in that period (when his parents would have been under American jurisdiction) then he'd view Inglis as born a citizen.

Story DOES NOT use the term 'natural born citizen'

He speaks of being a citizen at birth. Citizenship came by two means: 1) birth and 2) naturalization. Contrary to Birther lore, there was no secret third category of native born persons who were not natural born. The terms were equivalents.

Plus, Story's summary of the common law rule:

"Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.

Don't put Cokes words into Story's mouth just because you think they agree.

Story's words so closely track Coke's words that it is implausible to suggest they don't agree; especially given Story gives a citation to Calvin's Case. Story made it plain he dissented with the court's reasoning for allowing Inglis to claim citizenship.

It's a confusing case to follow. One almost has to diagram it out. The majority took the view that no matter when Inglis was born he either was born a British subject (options 1 and 3 noted earlier) or under a disability precluding him from making the election required of all citizens as to which side of the war they were on. (It was Justice Johnson who wrote the clearer statement of citizenship I quoted earlier; Justia, unlike Cornell, doesn't break out the opinions by judge).

Story agreed with the majority in treating Inglis effectively as an alien (though, as noted Story would treat him as a citizen upon proper proof of birth between July 4 and Sept. 15) though Story offered different reasoning: "Upon another leading point, that of the alienage of the demandant, my opinion coincides generally with that of the majority of the Court, but the reasons on which it is founded are given more at large than in that now delivered by my brother THOMPSON."

To constitute a citizen, the party must be born not only within the territory, but within the ligeance of the government Page 28 U. S. 168

Isn't that what we've been saying all along?

No. It's what anti-Birthers have been saying all along. This is simply a recitation of the common law rule of Calvin's Case: persons born within the territory to aliens who are in amity (owning a temporary allegiance) are natural born subjects (citizens). There are classes of persons under the common law not "within the ligeance" of the sovereign: 1) ambassadors and 2) hostile invaders. When the common law was adapted in American a third case was presented: Indian tribes.

And now we have Story saying it?

You do. Oh, you do!!! He says it! I'll support you on that one. And he says right after "This is clear from the whole reasoning in Calvin's Case." Hey, Calvin's Case. You know, that seminal jus soli case, the one Lord Coke predicates heavily on natural law? Here it is, brought into U.S. jurisprudence by one of our most illustrious SCOTUS justices ever. Isn't that great???

Another slap at CpnKook's house of cards.

LOL. Yet, again, there isn't a bit of legal text or opinion you can't manage to misread.

The Federal government has not adopted the common law of England.

Unlike the states, the United States does not proceed from a prior government. It is a new frame of government.

It is a new government founded on new ideas that all men are created equal and endowed by their Creator with inalienable rights.

The foundational ideas of the United States are completely different from and incompatible with the ideas of England.

Instructions To Virginia Senators, January 11, 1800.
The House proceeded to consider the instructions from the General Assembly of Virginia, to STEPHENS THOMPSON MASON and WILSON GARY NICHOLAS, senators from the state of Virginia, in the Congress of the United States. The instructions are as follows:
The General Assembly of the commonwealth of Virginia, though it entertains no doubt of your punctual performance of your duty, or of your faithful adherence to the great principles of constitutional law, and national policy, deems it incumbent on it to communicate its opinions, formed after the most mature deliberation, on certain subjects essentially connected, as it solemnly believes, with the dearest rights, and most important interests of the people.
...The General Assembly of Virginia would consider themselves unfaithful to the trust reposed in them, were they to remain silent, whilst a doctrine has been publicly advanced, novel in its principle and tremendous in its consequences: That the common law of England is in force under the government of the United States.
...Deeply impressed with these opinions, the general assembly of Virginia instruct the senators, and request the representatives from this State, in Congress, to use their best efforts —
To oppose the passing of any law, founded on, or recognising the, principle lately advanced, ‘that the common law of England is in force under the government of the United States,’ excepting from such opposition such particular parts of the common law as may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; .... and excepting, also, such other parts thereof as may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated.”

There you have it - “Our dearest rights and our most important interests are threatened by the idea that the common law of England is in force under the government of the United States.

This audacious, barefaced and sweeping pretension to a system of law for the United States, a system not adopted by the legislature, a system beyond judicial power to adopt, would make judges into legislators since they would decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States.”

This was affirmed by none other than James Madison, member of the General Assembly of Virginia, who voted in the affirmative.

He speaks of being a citizen at birth. Citizenship came by two means: 1) birth and 2) naturalization.

That's correct. A citizen AT birth is a naturalized citizen. A citizen BY birth is natural born.

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resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.

That's right, that was the common law In England. But as I've already shown you (and you've summarily ignored) Story's own words - what he mentions as the 'common law' is not the end of the discussion. You keep acting as if he just stops in England at that point instead of continuing to explain the laws as they are applicable in the States DO NOT include temporary residents, but those with a political tie-
To constitute a citizen, the party must be born not only within the territory, but within the ligeance of the government

This is EXACTLY what Blackstone's work said as our country was forming-

OF THE PEOPLE, WHETHER ALIENS, DENIZENS, OR NATIVES
The first and most obvious division of the people is into aliens and natural-born subjects.1 Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the ligeance, or, as it is generally called, the allegiance, of the king; and aliens, such as are born out of it.
Chapter X , William Blackstone, Commentaries on the Laws of England

Which is also what Tucker said:

A very respectable political writer makes the following pertinent remarks upon this subject. "Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration.
http://press-pubs.uchicago.edu/founders/documents/a1_8_4_citizenships15.html

You cannot be 'born within' the Allegiance of a State unless your parents ALREADY possess theirs.

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Residency is a required procedure before an alien can become a citizen. The Founders insisted that both a residency requirement as well as a renunciation of foreign allegiance for their own generation despite the fact they fought the War.

Secondly. He shall, at the time of his application to be admitted, declare on oath or affirmation before some one of the courts aforesaid that he has resided within the United States five years at least, and within the state or territory where such court is at the time held, one year at least; that he will support the Constitution of the United States; and that he does absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty
Naturalization Act of 1795
http://www.earlyamerica.com/milestone-events/naturalization-act-of-1795-text/

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Believe as you will, but holding anyone else to a lesser standard than the Founders held themselves is not only a patently ridiculous concept, it's destroying the country as well.

The foundational ideas of the United States are completely different from and incompatible with the ideas of England.

And there it is in a nutshell. By the Common law of England, everything we did was illegal. There is no justification for our actions under the Common Law of England. Our actions in creating a new government and new CITIZENS were completely outside the comprehension of the Common Law.

Thank you for posting that illuminating article about how the common law was regarded during this era. As it should happen, I have something similar. Remember that book that Cpn Kook loves to denigrate as being solely the work of one man who is a big nobody in the founding era? (He never bothered to look at the history of this "nobody".)

Well, the book was the consequence of the Legislature of Pennsylvania ordering the court to distinguish which English laws ought to be adopted by statute from those that should not.

In the first seventy-five years of our independence, many Americans – lawyers included – attacked the common law and advocated strongly for codification of all American law, in part, for the better security of citizens from arbitrary rule by judges. The common law was denounced as a barbaric, feudalistic relic of medieval England that imposed ex post facto, retroactive law on parties whenever judges found a new tort or new common law crime.50 Jefferson wrote in a private letter in 1788 that courts in America should be forbidden to cite any English decision since the accession of Lord Mansfield to the bench (in 1756),51 and in a private letter in 1812 that it was improper to quote in American courts any English authorities later than the accession of George III (in 1760).52 During the early codification movement three states – New Jersey in 1799,53 Kentucky in 1808,54 and Pennsylvania in 1810, 55 passed statutes specifically forbidding citation of English cases decided after July 4, 1776. The statutes did not last long in force, and there is some evidence that they were not enforced.56 In New Hampshire, a rule of court was adopted forbidding English citations.57

Which explains what motivated the Pennsylvania legislature to create this directive.

Which then created *THIS*:

Of which this is a prominent feature.

Jefferson letter to Edmund Randolph, August 18, 1799:

Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force and cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of un-given powers have been in the detail. The bank law, the treaty doctrine, the sedition act, alien act, the undertaking to change the State laws of evidence in the State courts by certain parts of the stamp act, &c. &c. have been solitary, unconsequential, timid things, in comparison with the audacious, barefaced and sweeping pretension to a system of law for the United States, without the adoption of their legislature, and so infinitively beyond their power to adopt.

And Madison had some things to say about the common law as well.

The common law is nothing more than the unwritten law, and is left by all the constitutions equally liable to legislative alterations. I am not sure that any notice is particularly taken of it in the Constitutions of the States. If there is, nothing more is provided than a general declaration that it shall continue along with other branches of law to be in force till legally changed. The constitution of Virga. drawn up by Col Mason himself, is absolutely silent on the subject. An ordinance passed during the same Session, declared the Common law as heretofore & all Statutes of prior date to the 4 of James I. to be still the law of the land, merely to obviate pretexts that the separation from G. Britain threw us into a State of nature, and abolished all civil rights and Obligations. Since the Revolution every State has made great inroads & with great propriety in many instances on this monarchical code. The "revisal of the laws" by a Committe[e] of wch. Col. Mason was a member, though not an acting one, abounds with such innovations. The abolition of the right of primogeniture, which I am sure Col. Mason does not disapprove, falls under this head. What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution.

So Cpn Kook can put that in his Blackstone and smoke it.

This is EXACTLY what Blackstone's work said as our country was forming-

OF THE PEOPLE, WHETHER ALIENS, DENIZENS, OR NATIVES The first and most obvious division of the people is into aliens and natural-born subjects.1 Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the ligeance, or, as it is generally called, the allegiance, of the king; and aliens, such as are born out of it. Chapter X , William Blackstone, Commentaries on the Laws of England

And as it should happen, this is exactly what the Book of English Law which Sat on John Adam's book shelf said as well.( Matthew Bacon, A New Abridgement of the Law, Vol 1, 1736)." )

But it would appear that people of Cpn Kook's ilk have a considerable difficulty with nuance.

And as it should happen, this is exactly what the Book of English Law which Sat on John Adam's book shelf said as well.

Nice find! The problem is so many people don't want to be bothered looking at the actual words or the works themselves. The 'Blackstone said you just have to be born in England' meme is a perfect example.

Not only does he mention the often-ignored tie of Allegiance, he spend a great deal of time after that discussing it.

Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king’s dominion and protection: and it ceases the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only;
Blackstone's Commentaries, Chapter X
http://oll.libertyfund.org/titles/2140

The only way Allegiance CAN be perpetual is by being passed down from parents to their child(ren).

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Keep fighting the good fight...and pardon my bad manners for not saying "Howdy!" earlier. :-)

Mr Idiot still hasn't explained how we got 100,000 children of ambassadors after July 4, 1776.

Now, just before, I provided you with a summary of the common law, noting that visiting aliens were recognized as owing a temporary allegiance to the sovereign, with two exceptions: 1) ambassadors and 2) hostile invaders.

Now, let's see if you are smart enough to make the proper comparison when we consider the situation of a British army coming to the U.S. To help you out here, it's like those picture books where a child is shown, say, two group of objects, one with a mix of land animals and one with a mix of birds, then is shown a pig and asked which to which group the pig belongs. OK?

So now given the situation of a British army coming to the U.S., when assessing the status of such persons and the allegiance of others aligned with them, would you say the operative rule would associate more closely with the common law precedent of 1) ambassadors or 2) hostile invaders?

Think hard.

Yeah, *I'M* the one who isn't getting this

Congratulations. For once you've managed to make a correct assessment.

The Federal government has not adopted the common law of England.

Right. There is no federal common law. This is a point acknowledged by the Supreme Court, though with one noteable exception:

"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." U.S. v. Wong Kim Ark, 169 U.S. 649, 655 (1998)

The foundational ideas of the United States are completely different from and incompatible with the ideas of England.

I'm not sure what "foundational ideas" entails. For sure, the U.S. wasn't establishing a Monarchy. Though a whole host of other ideas remained in common between England and the U.S., which is amply demonstrated by the similarity of language and concepts employed in our Constitution.

But the main topic here is Article II eligibility and citizenship. I'll note here (since this is pertinent both to your post and one I'm addressing shortly, that Thomas Jefferson authored a citizenship statute for the State of Virginia that contains a Blackstone-like jus soli principle:

"Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed{.}" Source

And, as I've noted on this thread several times, St. George Tucker, one of our nations premier early legal scholars, cites this statute as exemplary of how U.S. law is in agreement with Blackstone.

So you and others can cite to whichever authors you like waxing eloquent about principles of American independence -- when it comes to citizenship rules, the English principle was adopted.

A citizen AT birth is a naturalized citizen. A citizen BY birth is natural born.

No. As to the native-born, "citizen at birth" and "citizen by birth" mean the same thing.

Though Story actually uses the term "by birth."

"Now allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship -- first, birth locally within the dominions of the sovereign, and secondly birth within the protection and obedience, or in other words within the ligeance of the sovereign.

I merely used the interchangeable "at birth" term. Both speak to the condition (citizen) existing from the moment of birth.

But out of curiosity, what naturalization law are you suggesting existed from 1776 to 1787 that would create some species of "naturalized at birth" person? Keep in mind Inglis's parents were British.

To constitute a citizen, the party must be born not only within the territory, but within the ligeance of the government

And what does Justice Story say immediately following that sentence? "This is clear from the whole reasoning in Calvin's Case." As I've shown you, Lord Coke in Calvin's Case reasoned that a visiting alien in amity owed a temporary allegiance "strong enough" such that if a child is born to the alien during that period of "momentary and uncertain" duration, said child is deemed natural born.

Which is also what Tucker said

Gray is showing agreement with Lord Coke and the ECL. So does Tucker. In his "Blackstone's Commentaries," Tucker set forth this line from Blackstone:

The children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such." (And that is a summary of Lord Coke in Calvin's Case.)

Tucker then drops a footnote (footnote 10):

10. L. V. Edi. 1794, c. 110. L. U. S. 1 Cong. c. 3. 7 Cong. c. 28. accordant. Link

The references are to three items of U.S law: 1) Laws of Virginia of 1794 (the citizenship law for the Commonwealth originally drafted by Jefferson); 2) The Naturalization Act of 1790; and 3) the 1802 Naturalization Act.

Of these Tucker states U.S. law is "accordant" meaning in agreement with Blackstone. So Tucker is indicating that American law is in agreement with the jus soli view of Blackstone.

"Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it."

This is a purely jus soli, territorial division. It supports what I'm saying. There are no "citizen parents" in view here.

You cannot be 'born within' the Allegiance of a State unless your parents ALREADY possess theirs.

Parents who are aliens within the State (nation) who are in amity (i.e, not an ambassador or aligned to a hostile invading force) are deemed to own an allegiance to the local sovereign. So those parents possess the requisite allegiance by which their issue is natural born.

Residency is a required procedure before an alien can become a citizen.

For those who are not born here, that is true. But if one is born here, one is a natural born citizen and not an alien.

holding anyone else to a lesser standard than the Founders held themselves

This is begging the question. I agree the standards that were set must be met. I merely contend you don't understand what those were.

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