. . . . This thread is generating a lot of interest from sp's , so a second ping seems necessary.
Good work, urtax$@work. Apparently, you started a brush fire.
Check out these, and other, comments:
# 32 , 39 , 40 ,
# 51 , 56 , 61 , 63 .
.
Posted on 06/23/2012 6:13:41 AM PDT by urtax$@work
That is what I have tried to explain in #39--that is a technical question.
That is a straightforward question. There either is or there isn't a definition. . . . The answer to the question can't be "it's a technical question". That's a statement, not an answer.
Not so fast. The technical question is not construction of the "natural born" clause; the technical question is settled law about how you read opinions and what the affect of a court decision is.
That's what I am trying to alert the reader to with the statement--the issue in citation of Minor as a holding is not the question of what the natural born clause means; but rather the fact that the decision doesn't address the issue you want to focus on (natural born) at all--the language is just excess verbiage from the court. Technically, the language is what lawyers call "dicta".
Minor has nothing whatever to do with the natural born citizen question under Article II... I know the case. I'm not asking you that. I'm asking you...Does Minor v. Happersett have within it a definition of, or what constitutes, a natural born citizen?"
That's why the answer to your question is "no".
Be sure to read this...
Hmmmmm...By virtue of the first clause of the Fourteenth Amendment of the Constitution.
The fact that you refer to "knowledgeable opinion" to the contrary only reinforces that this is lost history. But lost or not, it is what the Framers intended if Paine is to be believed.
Well it isn't "lost"--but it isn't "law" either.
I don't have my book of the history of the convention handy but as I recall, Paine wasn't even a delegate.
However there are other writings from people who were delegates to the contrary; further, there is an argument that whatever some delegates or observer's thought it meant, particularly with others who thought something else, what it means now is what we say it meant in that context.
The Supreme Court doesn't look much at legislative history on Constitutional interpretations unless the history supports the decision to which the Court has agreed. (Except in Tax Cases.)
Further, you are engaging in a misrepresentation of what Paine actually said. All he said was "native" and yes the arguments about half native and whatnot might or might not mean something but Paine was neither a delegate nor a lawyer and the technical point at issue on meaning of the natural born clause is the ability of a foreign sovereign to exercise authority over the head of state of the United States.
Native was in fact the issue the real delegates viewed as controlling alright--but they viewed it in the legal sense--someone who was born in the territory of the several states so as never to have been subject to the sovereignty of a foreign head of state.
Did you miss this right before your snippet?
And what of this from after your snippet? It's really important as it makes a critical distinction.
You have to read this stuff in context as you well know.
Nothing makes these people natural born citizens, just citizens.
An alien visiting on a student visa retains his, or her, citizenship due to a dependent power...their home nation's claim to its own citizens.
Your snippet even emphasizes this...
Your arguments come down to white is black and black is really blue.
. . . . This thread is generating a lot of interest from sp's , so a second ping seems necessary.
Good work, urtax$@work. Apparently, you started a brush fire.
Check out these, and other, comments:
# 32 , 39 , 40 ,
# 51 , 56 , 61 , 63 .
.
Another example is the 2nd amendment. Rather than just reading the content , look WHERE it is in the overall structure outline of the document. Just another one of those aspects that i never hear used in argument.
True, Paine was not a delegate. But as I pointed out, Thomas Jefferson wasn't a delegate either, but his letter in 1802 to the Danbury Baptist Association has become the justification for the "wall of separation between church and state." Also not "law," but Jefferson's letter is apparently treated as such.
However there are other writings from people who were delegates to the contrary;
I'd like to see those. Can you point me to some?
Further, you are engaging in a misrepresentation of what Paine actually said. All he said was "native" and yes the arguments about half native and whatnot might or might not mean something...
I think you are engaging in the misrepresentation, becuase you say that " All he said was 'native'..." which is not true. Paine went on to refer to "foreigner" and "half a foreigner," and contrasted that with the words "full natural or political connection with the country." Paine goes on to say that "The presidency in America (or, as it is sometimes called, the executive) is the only office from which a foreigner is excluded..." He clearly intended this to mean the full or partial foreigner that he had just finished describing.
Native was in fact the issue the real delegates viewed as controlling alright...
Read further down in the linked thread to see other posters' documentation on what the word "native" meant at the time.
-PJ
Read further down in the linked thread to see other posters' documentation on what the word "native" meant at the time.
Sure, but the point about foreign and half foreign is the same thing.
But there is also correspondence among others (some of which as I recall is a fairly recent discovery) who were delegates and all they talk about is place of birth.
But there is a reason for that and it comes back down to what the US tries to do to people on the other side of this coin--make them citizens and levy taxes on their income even though they aren't here. Under international law doctrines, the sovereign of the place of birth has significant jurisdiction.
On the other hand, a country can make a person a statutory citizen and that doesn't extend any power at all. Maybe a third of all American's with European ancestry are citizens of some other country in Europe--most don't even know it. Irrelevant.
Jefferson's letter happened to be consistent with where the Court was going at the time the religion issue appeared but as a general proposition, the Court doesn't give a lot of weight to argument's like this in much of any case.
Bottom line, and this is the end of our discussion; the weight of whatever history there is sits on place of birth. And the legislative history is not the only reason the Court is going to come down on this side of the issue.
Citizen can be based on whatever definition you choose, place of birth alone if you wish. But after passing the citizen test, one must pass the natural-born test to be president.
You haven't addressed why the Founders added the additional qualifier of natural-born (and excluded it in the grandfather clause) if place-of-birth is enough to define ordinary citizenship.
-PJ
You fail to distinguish between Indians, whose nations are also located totally inside the USA, and aliens. The law understood that distinction:
“An Indian, born a member of one of the Indian tribes within the United States, which still exists and is recognized as a tribe by the government of the United States, who has voluntarily separated himself from his tribe, and taken up his residence among the white citizens of a state, but who has not been naturalized, or taxed, or recognized as a citizen either by the United States or by the state, is not a citizen of the United States within the meaning of the first section of the Fourteenth Article of Amendment of the Constitution.”
However, that changed by law in the 1900s.
WKA also noted that exception:
“The only adjudication that has been made by this court upon the meaning of the clause, “and subject to the jurisdiction thereof,” in the leading provision of the Fourteenth Amendment is Elk v. Wilkins, 112 U.S. 94, in which it was decided that an Indian born a member of one of the Indian tribes within the United States, which still existed and was recognized as an Indian tribe by the United States, who had voluntarily separated himself from his tribe and taken up his residence among the white citizens of a State but who did not appear to have been naturalized, or taxed, or in any way recognized or treated as a citizen either by the United States or by the State, was not a citizen of the United States, as a “person born in the United States and subject to the jurisdiction thereof” within the meaning of the clause in question.
That decision was placed upon the grounds that the meaning of those words was
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;
that, by the Constitution, as originally established, “Indians not taxed” were excluded from the persons according to whose numbers representatives in Congress and direct taxes were apportioned among the [p681] several States, and Congress was empowered to regulate commerce not only “with foreign nations” and among the several States, but “with the Indian tribes;” that the Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States, but were alien nations, distinct political communities, the members of which owed immediate allegiance to their several tribes and were not part of the people of the United States; that the alien and dependent condition of the members of one of those tribes could not be put off at their own will without the action or assent of the United States, and that they were never deemed citizens except when naturalized, collectively or individually, under explicit provisions of a treaty, or of an act of Congress; and therefore that
Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more “born in the United States, and subject to the jurisdiction thereof” within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.
And it was observed that the language used in defining citizenship in the first section of the Civil Rights Act of 1866, by the very Congress which framed the Fourteenth Amendment, was “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” 112 U.S. 99-103.
Mr. Justice Harlan and Mr. Justice Woods, dissenting, were of opinion that the Indian in question, having severed himself from his tribe and become a bona fide resident of a State, had thereby become subject to the jurisdiction of the United States within the meaning of the Fourteenth Amendment; and, in reference to the Civil Rights Act of 1866, said:
Beyond question, by that act, national citizenship was conferred directly upon all persons in this country, of whatever race (excluding only “Indians not taxed”), who were born within [p682] the territorial limits of the United States, and were not subject to any foreign power.
And that view was supported by reference to the debates in the Senate upon that act, and to the ineffectual veto thereof by President Johnson in which he said:
By the first section of the bill, all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, persons of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is, by the bill, made a citizen of the United States.
112 U.S. 1114.
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.
The principles upon which each of those exceptions rests were long ago distinctly stated by this court. [p683]”
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html
I shouldn't need to.
A person born offshore might become a statutory citizen under ordinary citizenship statutes which Congress has the power to adopt; not naturalized but a citizen at birth under the circumstances of birth--in fact we have a bunch of statutes like that.
That person shouldn't be natural born and shouldn't qualify to become President because the person is subject to the sovereignty of the head of state of the place of birth which might override his decisions as President.
We could (but do not) have a statute that says a person who resides here twenty-five years becomes a citizen on the twenty-fifth anniversary. Same answer; same reason.
Naturalized citizens shouldn't be eligible either--same reason.
I thought Marco was four years old when his parents became citizens, naturalized citizens :-)
Marco Rubio
born May 28, 1971 in Miami, FL (Meets the Jus Soli Requirement)
Parents were
Mario Rubio born in Cuba, naturalized Nov. 5, 1975.
Oria Garcia born in Cuba, naturalized Nov. 5, 1975.
Parents were NOT US Citizens at the time of his birth (Does NOT meet the Jus Sanguinis Requirement)
Marco Rubio is NOT a NATURAL BORN CITIZEN.
Marco's status is the same as that of Barry Soetoro, aka Barack Hussein Obama, who is NOT a Natural Born Citizen.
So, legally speaking, we still don’t have a definition of “natural born citizen” as it relates to the constitutional requirements for president?
The law defines both natutalized and born citizenship. Over time the exact definition and requirements for each has changed....
For instance, Wong Kim Arc, born in the US to legally residing non-citizens, was declared by the USSC to be a “born” citizen through the application of the 14th amendment which was written to provide born citiznship (ie no need to naturalize) to former slaves (born in the US of non-citizen parents), and the British custom (actually Feudal Europe) that says all those born in the king’s land belong to the King....Birth to the soil, the statis of a feudal serf. The so called “natural born subject” whose loyality from birth is to the land/crown. (Jus solis.)
Both an older, and at the same time more modern, concept is that of a Natural Born Citizen. A citizen being someone that the Government was responsible TO. Old Roman law was the first in Europe to use this term, followed by later 18th Century European jurists, who refined the term to it’s modern definition.
A construction of language, rather than law, a Natural Born Citizen is someone whose Citizenship is due to the birthright bestowed by birth on the native soil AND the bloodright bestowed by citizen parents. In others words...a “Native” (as opposed to the very different construction of “native born.”) Therefore a Natural born citizen is someone born in a country to parents who are it’s citizens. These people form the majority of most societies and form the foundation for it’s continuation.
As a sidenote you’ll note that women, prior to the passage of women’s sufferage did not hold citizenship separate from their father/husband, so in effect, prior to the 22nd Amendment, (and the 14th), the citizenship of the father was the real determing factor of a child’s citizenship as the wife/mother shared the father’s citizenship.
In US law the distinction of being a Natural Born Citizen matters in only one area....that of being eligible for holding the Office of President. It has no other cachet for a citizen, or in a citizen’s rights/responsibilities. There is scant, actually no, legal decisions concerning the application of Article II eligibility requirements, probably due to the fact that it has only mattered less than 44 times in our Nation’s history, although the judicial record is replete with many instances of the USSC, in deciding citizenship cases, refering to the term and it’s meaning, most notebly in Minor v Happersett. Although the definition of naturalized and born citizenship have changed over time the term Natural Born Citizen has remained constant. It is, after all, a matter of language not law. Keep in mind that either born or naturalized, there are no “classes” of US citizenship.
This requirement of birth on the soil to citizen parents is not something that was added by Freepers in posts to a 21st Century public forum. Far from it.
As I stated above it is a matter of language, intentially used by the Framers in writting the Constitution, whose understanding of a Natural Born Citizen is a “Native”,...someone born to the soil AND To citizen parents. Jus solis AND Jus sanqunis
(to the soil and to the blood.)
So no, I’m sorry, your children are not Natural Born Citizens, although they certainly are “born citizens.” Take heart, your grandchildren, if your children marry US citizen spouses, and have their children in the US, WILL be NBC and eligible to become President......It’ll just take another family generation....
“Rubio is now engaged in a farce.”
My hope has always been that Rubio, after being asked to be Romney’s VP (or not asked) declines the offer giving as a reason that being born in the US to non -citizen but legally residing parents, makes him a “born” citizen but not a Natural Born Citizen, and thus is ineligible to be considered for the VP/Presidency per Article II of the Constitution. Let the MSM chew on that one a while!
Don’t be so quick to condemm Rubio for the misplaced enthusium of his “flavor of the month” VP candidacy boosters.
And if he comes through with the above, he’ll earn my respect as a true American Hero and a “Profile in Courage.”
In the sense of trying to predict what the Supreme Court would do with the issue in case, in my opinion we do. If we have a person who was born in the United States, he will be held eligible to hold the office whoever his parents are; wherever they were citizens.
And if he gets to the Court on a record that demonstrates that he was born outside the United States, the Court will hold that he is not eligible to hold the office and will rule that what he has done acting as President including but not limited to appointment of two Supreme Court Justices is void.
The dreamworld view that is so widespread here that would have him held ineligible because he has said that his father is Barack Obama Sr. who was not a citizen has no prayer--serious Constitutional Lawyers view the suggestion as a non starter.
The dreamworld argument has damaged our tactical case. Because had our counsel focused on the proposition that the only real evidence of his place of birth was his oral statement against interest that he was born in Kenya, we would have been able to get a court ruling that would have forced Barry to appear with evidence about where he was in fact born or be ejected from the ballot in Georgia.
Rubio is NOT naturalized. He was born in Miami, Florida.
His parents were Cuban refugees who were naturalized when he was four years old. There are those who hold that a “natural born citizen” should be one whose parents were citizens at the time of birth and who therefore hold that Rubio is ineligible for that reason.
However, the constitution did not clarify that point and, according to those who know constitutional law, that is not the prevailing opinion among the legal establishment.
If Rubio is nominated, he will be considered eligible. After Obama’s election, the question of required parental citizenship is probably over.
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