Posted on 03/23/2015 10:36:02 AM PDT by Citizen Zed
“So if Barry was born in Kenya, then he is a natural born citizen because he had a American mother?—”
This is what the 1790 Naturalization Act say, but it contradicts the Constitution. The founding fathers quickly realized that only an amendment could do that so they SUPERCEDED the 1790 Act with the 1795 Naturalization Act that removed the language that contradicted the NBC language in the Constitution...so NO Barry would NOT have been NBC if born in Kenya IMO.
These two former solicitors general should have known this and appear to have conspired to lie to the peeps!
I agree..
You have some misinformation. Stanley and BO Sr. don’t appear to have lived together for one second. While there is a divorce document, no one has ever seen any sign of a marriage, and of course BO Sr. was already married.
While Stanley Ann did get knocked up by BO Sr within a couple of months of beginning the U Of HI at 17, she was never seen there pregnant. She was out of there before the next semester. The next time people report seeing her was just before school started in Seattle at the college there (don’t remember which one). She was somewhere else for the duration of her pregnancy, and it was common to disappear to an unwed moms home.
Possibly my point was poorly worded, although I do think it is relevant.
The Constitution does not always define terms it uses. For instance, “militia” and “arms.” The specific meaning of these terms was not defined simply because they were well known to all.
But the term did have a definition, and that definition is the one commonly understood by the authors and ratifiers of the Constitution. Congress cannot simply redefine terms the Founders used in the Constitution at their whim.
For instance, they can’t redefine the term “arms” in 2A to refer only to pocket-knives, leaving the keeping and bearing of any other weaponry open to infringement at the whim of Congress.
Similarly, the term “natural born citizen” had a meaning to the Founders. One that is unfortunately not as obvious to us today. But the term cannot be redefined by Congress (or the Courts) at their whim. Only the Supreme Court can issue a definitive ruling on what the original intent of the Founders was in this regard.
That ruling may or may not be accurate, but given our present system is would be final, in practical terms.
For the Art. II geeks, who will get the “common law” angle. It’s very short.
https://myveryownpointofview.wordpress.com/2015/03/26/the-clause-of-conversation/
https://myveryownpointofview.wordpress.com/2015/03/26/the-clause-of-conversation/
Don’t assume that common law was the basis. It was not.
Your link agrees with me that common law was the basis of American citizenship.
Under that law, Cruz would not be a natural-born citizen.
Another factor is that at the time of the Constitution, the citizenship of the father was, I believe, much more important in determining the citizenship of the children than that of the mother. This is a problem for original intent types, since the original intent was by our standards wildly sexist.
No, it does not. How do you read Binney stating, “The notion that there is any common law principle to naturalize the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not and never was any such common law principle. “ and think that common law WAS the basis?
“Wildly sexist” by today’s terms meant ZERO when the Constitution was signed. It wasn’t even a fricken concept. Why do people try so hard to equate today’s social and political correctness standards to the 1700’s? WHY?
Binney is saying that there is no common-law principle by which children born to American parents overseas are American citizens. Which is perhaps why the First Congress passed a law naturalizing such children.
IOW, jus solis, not jus sanguinis, is the basic principle of American citizenship, as it was of English citizenship under common law. This agrees, BTW, with several Supreme Court decisions.
Using this criteria, Obama, born in HI, is a natural born subject/citizen.
Cruz, born in Canada, is not a natural born subject/citizen.
We seem to be developing a doctrine whereby both jus solis and jus sanguinis apply, which is pretty weird, as they're generally consider mutually exclusive.
Citizens are either born in the USA, or naturalized by power of Congress.
Unless I misunderstand your point, I think you don't understand this quote.
He is specifically saying that common law was the law of citizenship in all states at the time the Constitution was adopted, and therefore it should presumably apply as the default position for the terms used in the Constitution.
Should note that the 1790 Naturalization Act referred to children of Americans born overseas as natural born. AFAIK no subsequent law has repeated this determination.
STATES - each state had it’s OWN naturalization laws before the Constitution was signed. There was NO common law for American citizenship. The citizenship of a person born to a place, and to it’s citizens, did not need a law to declare their allegiance. READ
I’m done. You think I’m misreading the quote, I think you are. The author’s dead, so we can’t ask him.
Just fyi, “common law” doesn’t refer to laws that are common to the states. It’s a system of judge-made law that evolved in England over many centuries and was eventually brought to this country. It still forms the basis of law in every state but LA.
http://en.wikipedia.org/wiki/Common_law#States_of_the_United_States_.281600s_on.29
Good grief - read more. I do not misunderstand, I READ the entire book. I am not at that computer now, but just google Horace Binney, Allegiance, 1853. You should find a link to the book. The first few pages are mired in old English laws dating back to the dawn of time, but read it all. And his grandson wrote the bio i included a screenshot of on my blog - to share the info that even up until the mid-1800’s there was NOT a law in place to address a child born out of the US to US parents, which adequately addressed the citizenship problem for those children. Binney’s own grandson was an ALIEN even though there were Acts/laws in place that were supposed to address the problem. Hence the later laws.
After re-reading our exchange I see where the trolly went off the tracks. My point was being that “common law” was never how citizenship was extended to children who were not native - although many who are anti-birthers have claimed it did.
You added, “(Binney) was saying that common law was the law of citizenship in all states at the time the Constitution was adopted,” ,where the more accurate thing to have said was that by the “principle of allegiance” citizens/children were either born or made. Splitting hairs, I know, but it is a distinction. Binney made that distinction presumably for a reason.
And, ahem, we are not to specifically discuss the topic as it applies to certain contemporary politicians. Ahem. But I do absolutely agree with you on that.
That screenshot of Binney’s bio, written by one grandson, shows us that even in 1853 there was no US law or Act that adequately naturalized children born outside of the US to US citizens, hence he (Binney) actually had a grandson who was in fact an alien due to this deficiency.
So, and finally, anyone MADE into a citizen by virtue of a law is a naturalized citizen. Simple and not at all controversial in my opinion. How could it be?
The only thing that remains to be settled absolutely and finally, is whether simply being born on US soil is sufficient to qualify, or if one must also have US citizen parents at the time of US birth. Proof of what the founders specifically meant is proving elusive. As we all know.
I can buy that.
My point was that common law was the default assumption within which the Founders worked. Therefore, for me, it’s the default assumption for what is meant by NBC.
I agree with you, I think, that Congress cannot extend citizenship to certain groups by a law and have them thereby becoms NBCs.
Whatever NBC means, it cannot be redefined by Congress. Although it can by an amendment.
It’s interesting that the 1790 Act defined children born overseas to Americans as NBCs.
I’m not sure what it means, exactly, but it’s interesting!
I believe that 1790 Act said, “shall be considered as natural born Citizens”. So, in law is “shall be considered as” the exact same thing as, “are natural born Citizens”? Again I split hairs, but I think in this case it is perhaps correct to do so.
HOWEVER the point is moot as that Act was repealed (in 1795) and the language changed by removing the words “natural born”. From that point forward naturalization laws have only used the single word citizen. But I do still wonder about the legal distinction of “be considered.”
Good point.
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