Posted on 12/28/2011 5:34:17 PM PST by rxsid
"THE PUBLIUS ENIGMA: Newly Revealed Evidence Establishes That President James Madison’s Administration Required Citizen Parentage To Qualify Native-Born Persons For U.S. Citizenship.
I was recently forwarded an incredibly amazing article from the October 10, 1811 edition of The Alexandria Herald newspaper. RXSID of Free Republic sent it with a brief note, stating, “Check out this case.” The Herald article is entitled, The Case of James McClure. The author is…PUBLIUS.
Publius was the pseudonym used by Alexander Hamilton, James Madison, and John Jay, for their anonymous authorship of The Federalist Papers. By 1811, Hamilton was dead and Jay retired. My research leads me to believe that the article was written by James Madison, but this has not been conclusively established yet. Regardless of authorship, Madison was President at the time the article was written, and it discusses the official position of his administration denying U.S. citizenship based upon simple birth in the country.
The official position of the Madison administration was that persons born in the U.S. to alien parents were not U.S. citizens. This was the ruling concerning James McClure, despite the fact that his parents had been settled in the country for many years prior to his birth. The article makes clear that the United States Minister to France, General Armstrong, refused diplomatic protection for McClure by denying he was a citizen of the United States.
This was the official decision despite McClure having been born in South Carolina in 1785 to a father who was naturalized months later in 1786. Armstrong informed the French authorities that the man was not a U.S. citizen, and McClure was left in French custody. The article by PUBLIUS indicates that Armstrong might have mis-applied the 1802 Naturalization Act, but PUBLIUS also makes clear that McClure was not a citizen by virtue of his native birth in South Carolina:
There was no statute in South Carolina in 1785 which granted citizenship to persons born there similar to Virginia’s statute mentioned in the article by PUBLIUS. Simply being a “son of the soil” was not enough, and this evidence repudiates the contention that the British common law had been adapted in all of the states after the revolution. Since there was no statute in place making those born in South Carolina citizens, McClure was not held to be a native-born citizen. That argument was utterly rejected throughout the affair.
The article goes on to question whether the 1802 act is defective in that PUBLIUS seems to believe citizenship ought to be revoked for naturalized persons who return to their original country and establish domicile there again. But the article makes clear that Madison’s administration steadfastly denied that simple birth in the United States was enough to establish citizenship. This, of course, discredits the conclusions of Justice Horace Gray in U.S. v. Wong Kim Ark, as well as the infamous New York Chancery opinion of Lynch v. Clark. Both cases contain erroneous assumptions that the British common law rule of jus soli governed citizenship from the very genesis of the United States.
I tracked down the original article published in the Richmond Enquirer on October 1, 1811, which was then republished in The Alexandria Gazette on October 10, 1811. Both of these newspapers were published in Virginia, Madison’s home state. Furthermore, the PUBLIUS penned article was the grand finale of nearly a year-long argument which went viral in various newspapers of the day starting in January 1811.
I have been up and down the East Coast tracking down the remaining newspaper articles on this as well as other supporting historical information. I have also consulted with professionals and am preparing an extensive section for my forthcoming book which details everything that has been unearthed.
The whole story cannot be understood by way of online searches. The internet is barren on this case. Some of the necessary information isn’t even available in the Library of Congress or National Archives.
Here are the images from the Alexandria Herald and Richmond Enquirer. The Herald scan is much easier to read than the Enquirer scan.
Leo Donofrio, Esq."
It's more of a stretch than that. If one actually reads the article linked the author references the "Act of 1802" and quotes the Naturalization Act
The children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States under the laws thereof, being under the age of twenty-one years at the time of their parents’ being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States, and the children of persons who now are, or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.The author "Publius" also says "In my judgement, our minister erred in his decision - & Mr. McClure ought to have been held as a citizen of the United States." He goes on to suggest that the law should be amended, but is clear that "We are not considering what the law ought to be, but what it is."
One must conclude that either Donofrio didn't actually read this article very well, or is dissembling about what it contains. I'll assume the original poster was misled by Donofrio's comments and did not read the article at the link.
No amendment has ever changed Article II, Section 1.
So why bring up amendments?
Supreme Court decisions back up this interpretation. Read Minor v. Happersett and U.S. v Wong Kim Ark. Born in the country to citizen parents = exclusive definition of natural-born citizen.
I do not see Leo’s direct conclusion(s) and find myself left to draw my own. Is this to suppose an indirect inference into the intent of the Federalist Papers rendering “…British common law rule of jus soli governed citizenship from the very genesis of the United States” invalid?
The error (as explained in the text) is on the basis of the naturalization of the father, not place of birth. It's very clear that place of birth is not sufficient to create citizenship for the children of foreigners. This rejects English common law ... and it does so by stressing a right of expatriation which is NOT part of common law.
17 posted on December 29, 2011 11:24:45 AM GMT+09:00 by mills044 (Don't Tread on Me)"
You are not. I am a fan of Spaulding's posts also. They're usually lengthy but worth the time.
That said, the main takeaway of this piece is that it serves to point up the fact that at this cited historical juncture, just plain citizenship of children born to one or more aliens on US soil was contested, if not outright denied, let alone Natural Born citizenship, an issue which was addressed soundly in Minor vs Happersett:
“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 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.”
Sounds pretty plain to me, what the description of a Natural Born Citizen is. Presuming Barry is telling the truth about his origins (which he very well could not be), he would not be eligible to presidential office unless SCOTUS were to rule otherwise, so as to remove the doubts. Remember, we're talking about the most powerful office in the world; when you're determining presumed loyalty to the country, and hence eligibility, you don't want doubts.
No problem. I quite agree that this issue has not been definitively ruled on or not.
Although the Wong case and others to my mind lean pretty heavily towards the jus soli side, there is still plenty of room for the court to rule in favor of jus sanguinis without actually overruling itself.
It seems, to me, that in general it’s the birther types who insist that the definition of NBC is self-evident.
Should be fairly obvious.
Article II states the Pres must be NBC.
Amendment 14 for the first time adds a constitutional definition of who is an American citizen.
The Court needs to rule on whether the 14th's language has any bearing on what is meant by NBC in Article II.
IOW, group A has always been considered NBC. Some have questioned group B's right to that status, which is why we need a Court ruling on whether those doubts are correct.
At the time of the Founding, it is reasonably clear that a child born on American soil to an American citizen father and a mother of foreign birth but not naturalized would have been considered NBC, but not if the parents' status were reversed.
Such sex-based distinctions have been largely or completely eliminated in our society. Do such changes mean the definition of NBC also changes?
Check out Minor vs. Happersatt for the interaction of the 14th and condition of a natural born Citizen. Or rather the lack there of.
The 14th Amendment did not change Article II, Section 1.
By his own admission, his citizenship status is governed by the 1948 British nationality act - soetoro/obama was born a Brit! How can a Brit be a natural born citizen of USA?
http://www.fightthesmears.com/articles/5/birthcertificate
‘“When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. 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.”
Sex-based distinctions might have been largely or completely eliminated in our society, but such changes can’t change the law that was at work at time of obama’s birth!
Because the citizenship status of an American is not determined by the laws of a foreign country but rather by those of our land?
This is, BTW, the issue that led most directly to the War of 1812. Britain insisted its laws on citizenship overruled those of the USA. We disagreed.
Dude! Way to Go!
This means a law was created to naturalize anchor babies... because they were not natural born citizens.
It also means that the NBC clause must be amended to qualify Obama for the presidency. We better get moving on that amendment.
You may already be aware of these, but I am fond of pointing out these two articles by a couple of prominent conservative writers.
Ann Coulter: Justice Brennan's Footnote Gave Us Anchor Babies
George Will: An argument to be made about immigrant babies and citizenship
What I consider supremely ironic is the fact that both of them disdain the "birther" issue, yet they both argue exactly in favor of it if they do not realize they are doing so. :)
This discovery makes it look like there really was a previous standard of not doing so and that it was changed by the 14th.
It was NOT changed by the 14th. It was changed by the way Liberal Judges started applying the law from the 1960s onward. Eisenhower Deported hundreds of thousands of illegal immigrants and did not recognize their "Anchor Babies" when doing so.
See the two articles I posted to PA-River above.
Glad to have that cleared up.
HA! You are pathetically trying to spin it. As a matter of fact, the TRUTH does override court decisions. Any decisions in conflict with the truth were wrongly decided. (Which is my position from the very beginning)
Other examples of WRONGLY decided court decisions are Kelo v New London and Roe v Wade. Anyone who thinks the courts are infallible is an idiot.
No offense intended.
You shouldn't apologize. That twit has long been considered to be a troll.
They did already in Minor v. Happersett and U.S. v. Wong Kim Ark:
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."
In construing the 14th amendment, the Constitution (of which the 14th amendment is a part) does NOT define natural-born citizenship. Minor made it very clear that persons who were already recognized as citizens (by virtue of being born in the country to citizen parents) did NOT need the 14th amendment to confer their citizenship.
... in our opinion, it did not need this amendment to give them that position. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision.
Further, the syllabus emphasizes that as much SINCE the adoption of the 14th amendment, that such persons are recognized as citizens because of the NBC criteria. This part of the syllabus is quoted verbatim in Ex Parte Lockwood.
2. In that sense, women, of born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment to the Constitution as since.
IOW, the 14th does not affect nor define natural-born citizenship. The Minor decision was unanimous, and because of their lack of dissent, Justice Gray noted in Wong Kim Ark that the Supreme Court was:
... 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 ...
All children, born in the U.S. of citizen parents were EXCLUDED from the operation of the citizenship clause of the 14th amendment. In case there's any question, the definition of NBC was specifically offered to satisfy the meaning of the term in Article II:
This is apparent from the Constitution itself, for it provides [n6] 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," [n7] 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.
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. 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 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 [p168] parents. As to this class there have been doubts, but never as to the first.
Justice Waite gives two separate classes of how one might be recognized as a citizen by birth, but ONLY ONE was characterized as natural born citizens: all children born in the cuontry to citizen parents. As we all know, this precludes Obama from being a natural-born citizen, even if he were born in the Oval Office.
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