“The fact is that these opinions are in the distinct minority. And in the rare instance when a judge has said that a NBC must have parents who are citizens, it has not been part of the decision in the case. Such comments have been gratuitous or “dictum,” as the lawyers say. That is, not necessary to the actual holding in the case.
Previous Court Scenarios
Where the issue has been squarely before a court, the result has been otherwise. In Lynch v Clark, decided in 1844, the issue was the right to inherit. The New York court held that the child, born in the U.S. of British subjects, could inherit because she was a NBC. In 1898 the Supreme Court in U.S. v Wong Kim Ark held the same way. Those cases are still good law today. These courts relied upon , in part, the English common law in deriving the intent of the Founders and pointed out that in England being born on English soil was sufficient for citizenship. The statements of James Madison, for one, make it clear that the Founders had no intention of deviating from the common law in this regard. This is further supported by official opinions of our nation’s Attorney Generals going back several years.
Finally, the 14th Amendment was ratified in 1868, which states, in part: “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.” Reading this together with Article 2 would indicate that the additional “natural born” requirement of Article 2 for a citizen to be eligible to be president meant that being “naturalized” would not suffice. He must be born here.
In 2011 the Congressional Research Service accurately stated, “The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth” …by being born in the United States and under its jurisdiction, even those born to alien parents…”
While the Supreme Court has never directly addressed the question of a specific presidential candidate’s eligibility as a NBC, it is inconceivable that the Court would depose a president who was born on American soil. Some people love to excite and stir us up but we have an election coming up, folks. May I suggest that we resist the temptation to chase every rabbit that comes down the trail and focus, instead, on that?
Fred Thompson
From the Thread Article
Has the common law of England been declared to be a part of the law of the United States by the Constitution?
There is in the Constitution no Article, Section, Clause, or anything whatsoever which incorporates the common law of England into the Federal government of the United States.
The common law of England has not been declared to be a part of the law of the United States by the Constitution.
Has there been any Amendment to the Constitution or any legislated Act to incorporate the common law of England into the Federal government of the United States?
There has not been any Amendment or Act incorporating the common law of England into the Federal government of the United States.
Is there in the Constitution any grant to the federal judiciary authority to incorporate other systems of laws of its own choosing?
There is in the Constitution no grant to the federal judiciary authority to incorporate other systems of laws of its own choosing.
Could the common law of England become part of the law of the United States by its being part of the law of each of the states, at the time of the adoption of the Constitution?
Although this would be giving efficacy to the inferior instead of the superior and a direct violation of U.S. Const. art. VI, cl. 2, could it be possible?
The law of each state prior to the adoption of the Constitution consisted of the common law of England, the state constitution, and the acts of the state legislature.
The common law of England then was only one of three pillars on which the law of each state was built. It was also the weakest of the three; because it ceased to have any efficacy as law as soon as it was clearly contradicted by either of the others.
If the common law became a part of the law of the United States, because it was part of the law of the individual state, the other two parts of the law of those states must also become a part of the law of the United States, and for the same reason.
But it may be said that these other two parts of the law of each state were dissimilar in the different states, and therefore could not become a part of the law of the United States; whereas the common law of England, in every state being the same, it might become the common law of the United States.
Is the common law of England in every state the same?
The acts of the British parliament are in force in the different states up to different periods; in some to the reign of one king, in others to that of a different king.
Thus the common law of England would be different in these two states.
But the great difference which has been made in the common law in the different states, has proceeded from the changes which have been made in it, by the acts of all the legislatures of the different states, from the time of their first settlement.
Not only is the common law of England different among the states, each state legislature has altered it in different ways; thus the common law of the various states is in no way uniform.
The common law being materially different in all the sates, how can there be any common law in the United States? How shall it be determined which of the states shall be considered as the standard, so far as to make their common law, the common law of the United States? Shall it be a majority of the states; or shall it be those states which contain a majority of the people of the United States? &c &c
Incorporation of the common law into the Federal govt is impracticable. Further, whatever species of the common law of England extant in the law or Constitution of the several states at the time of the Adoption – or at any time – are by U.S. Const. art. VI, cl. 2 prohibited from incorporation into the Federal government.
Therefor, in no way can the Federal govt. be said to be based on, or to have incorporated, the common law of England.
The jurisdiction of Federal courts is defined by the Constitution. Federal judicial reliance on the common law of England is a dangerous usurpation and a direct subversion of the fundamental principle of separation of powers. Any incorporation of English common law is not a Judicial power, it is a power of the Legislature.
This judicial myth of the common law of England being a part of federal law is dangerous. Federal court judges misconstrue the doctrine of stare decisis mistakenly believing that the common law of England actually is incorporated into federal law since a prior court said so.
A court can not establish a new grant of power to itself!
The unsanctioned assumption of power not granted does not establish precedent in the sense of stare decisis. Stare decisis: “to stand by things decided” not “to stand by powers self-granted”.
English common law is not a part of our national law, any Federal judge’s claim notwithstanding.
This terribly mistaken idea gained currency circa 1845 and O. W. Holmes championed it. The border insecurities, the bankrupting of our municipalities and hospitals, corruption and dilution of citizens' votes, etc, are in no small measure symptoms of the “anchor baby” crisis birthed by Justice Gray’s reliance on this alien system of law.
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Further explanation as to why English common law can not be the basis of the Federal govt. can be found at the Library of Congress:
http://memory.loc.gov/cgi-bin/query/r?ammem/fawbib:@field%28DOCID+@lit%28bbf0081%29%29
The explanation is found in the Appendix to “Correspondence between George Nicholas Esq. of Kentucky, and the Hon. Robert G. Harper of South Carolina, on the subject of the Alien and Sedition Laws, 1798″ The Appendix is titled, “Observations of Judge Addisons Charge to the Grand Jury On the Liberty-of-the-Press”
The relevant pages of the original document, as well as a transcript from those images, is available at scribd: http://www.scribd.com/doc/89761472/
"36 Madison's Debates in Federal Convention
In a word; the two extremes before us are a perfect separation & a perfect incorporation, of The two the 13 States. In the first case they would be extremes, independent nations subject to no law, but the law of nations. In the last, they would be mere counties of one entire republic, subject to one common law. 1 "
Law of Nations and subject to one common law. Here's a hint for you, Madison is NOT speaking about English Common Law.