August 26, 2014 3 Comments
Mario Apuzzo, Esq. said…
Here is an interesting quote from Secretary of State, William L. Marcy, 1854:
“In reply to the inquiry which is made by you in the same letter whether;
‘the children (of foreign parents) born in the United States, but brought to the country of which the father is a subject, and continuing to reside within the jurisdiction of their father’s country, are entitled to protection as citizens of the United States,’ -
-I have to observe that it is presumed that, according to the [British] common law, any person born in the United States, unless he be born in one of the foreign legations therein, may be considered a citizen thereof until he formally renounces his citizenship. There is not, however, any United States statute containing a provision upon this subject, nor, so far as I am aware, has there been any judicial decision in regard to it.”
William L. Marcy, Sec. of State, to Mr. Mason, June 6, 1854. MSS. Inst., France.
Note that Mr. Marcy only “presumed” that under the common law a child born in the United States to alien parents was a citizen. We know from the U.S. Supreme Court in Dred Scott v. Sandford, 60 U.S. 393 (1857) that such children were aliens (decided before the Civil Rights Act of 1866 and the Fourteenth Amendment of 1868 went into effect).
The U.S. Supreme Court in The Slaughterhouse Cases (1873) said that they were not even citizens under the Fourteenth Amendment.
We know from the unanimous U.S. Supreme Court in Minor v. Happersett (1875) that the common law did not so provide. On the contrary, under the common law, which was American common law and not English common law, such children were “aliens or foreigners” who could be naturalized after birth under Acts of Congress. The word of the U.S. Supreme Court trumps that of any other authority (Secretary of State, Attorney General, etc.) who may have thought that these children were citizens.
It was not until U.S. v. Wong Kim Ark (1898) that such children were accepted as “citizens of the United States” at birth under the Fourteenth Amendment (not to be confused with American common law natural born citizens under Article II).
Also note that Mr. Marcy said that there was no Act of Congress addressing the status of children born in the United States to alien parents. So, he confirmed that no such statue declared such children to be citizens of the United States.
What strikes me as significant is that if those children had been natural born citizens, neither Mr. Marcy nor any other authority would have had to presume what their citizenship status was. He also would not have had to expect to see an Act of Congress making those children citizens of the United States.
Finally, Mr. Marcy missed the simple point that there was an Act of Congress dealing with the issue. That Act was the Naturalization Act of 1802 in which Congress, like it did in the Acts of 1790 and 1795, treated children born in the United States to alien parents as alien born. That is the reason that there was no Act of Congress declaring as these authorities had wanted these children as citizens. Congress had already spoken and it was not what these authorities had wanted. Indeed, Congress said that these children were aliens and could become citizens upon the naturalization of their parents.
Given this legislative and court history and real or feigned doubt regarding their citizenship status, there simply is no way that a child born in the United States to alien parents was a natural born citizen.
Someone commented: …your bizarre and mistaken notion that the Founders couldn’t possibly have adopted anything of British common law as they were in the process of rejecting the sovereignty of the monarchy…
I guess you now agree that…the various colonies adopted, in the new language “citizen,” all the former legal concepts referring to “subject,” including “natural born subject,” which in British common law always meant “born in the allegiance” that is, in the territory.
Wow! Your ignorance is… what am I thinking… -it’s perfectly typical of both obots and birthers, -both of whom embrace unexamined and misconceived ideas of what the reality of nationality was in late 18th century America. I’ll attempt to restate what I’ve already stated a hundred times before in order to inform you.
In pre-independence America, there was only one system of nationality assignment; the rule of the British common law.
In post-independence America, there developed 13 new systems as each of the independent sovereign new republics of America created new Constitutions for themselves, -which included the subject of nationality and what the rules or laws and acknowledgements would be regarding it.
British common law ended with the ratification of those Constitutions.
After that, one could only accurately refer to State law, -not common law tradition. Tradition was over as being only tradition, but was then incorporated into the new nationality clauses of the new Constitutions.
They were similar in nature, -some possibly almost identical, but they were still individual and separate, and applied under separate sovereignty.
In post-Constitution America, a new, previously non-existent government came into being out of nothing, without ties to the past that bound it to any nationality tradition. It was free to adopt whatever nationality rule it viewed as best.
What it choose was nationality based on citizen sovereignty -on unalienable Natural Rights, one of which did not end at the water’s edge but remained with all American citizens regardless of location, and that was the absolute natural right to pass their national membership to their children via blood inheritance, -just like a father passes his name (and race and societal standing) to his young. (-just as you would not deem your own natural born child to be an alien if not born under your own roof). Natural law is supreme when it comes to natural belonging, and governments, possibly universally, avoid violating it.
In that situation you had two competing systems and that resulted in unresolved positions, presumptions, and concepts about nationality. The States had their nationality laws and the Ministry of Foreign Affairs of the new government had its. The basic truth was that citizenship was first and foremost and almost entirely State Citizenship. One was a citizen of their own State, of the Union of the States, and by extension, of the aggregate nation or “The United States”.
Who cared what the national government’s view was when they all lived their lives as State citizens? Answer: only those who were well-off enough to travel to other nations and needed international travel papers. They could only be issued by the national government since it represent all international issues.
Thus it had to have a policy as to whom it would issue American travel papers. It had to decide who were Americans and who were not. It found that very easy to decide. It followed the same principle that had been followed for thousands of years: if born of an insider, then you were an insider also; if born of a foreigner, then you were a foreigner also.
The reason was fundamental to the American Revolution; Dual or shared Sovereignty was unacceptable to the British, so the Americans had to take the same attitude and realize it was all or nothing. They were their own lords and masters or the British were. They choose the former.
One belonged to only one people, one nation, one government authority; -not two. That way there was no conflict of sovereignty. It was the same within the foundational unit of society: the family.
All members of every family had the same nationality as the head of the family; -he who was the boss and represented the entire family to the world.
All wives and children had the husband & father’s name and nationality. Duality was unthinkable, -like national bigamy. It was rejected by the national government, but… accepted by the State governments which had no concerns about competing sovereignty or international relationships.
They continued to allow their alien-born children who entered the world within their borders to be considered native members from birth; -“native members”, -not “natural members”.
” So…it’s…certain that the various colonies adopted, in the new language the term “citizen,” and all the former legal concepts referring to “subject,” including “natural born subject,” which in British common law always meant “born in the allegiance” that is, in the territory.”
It is a mistake of ignorance to state that because it means that;
1. they also adopted the common law doctrine that one was a prisoner of their nationality for the rest of their life (perpetual allegiance) with no natural right of expatriation (the very impetus for the American revolution and independence, as well as the War of 1812);
2. that they had to prove that they had taken communion in a Anglican church within the last three months before nationalization; and
3. that the term “natural-born subject” also included those naturalized by Parliament, -not just those born within the dominion.
On top of those, there is the issue of your writing “natural born subject” without a hyphen. That is a huge mistake as I outline in my latest exposition titled: “Why a Hyphen and an Underline Condemn Obama’s Presidency“. http://h2ooflife.wordpress.com/2014/06/03/why-a-hyphen-and-an-underline-condemn-obamas-presidency/
(Until you read it, you will remain in the ignorance of your misconceptions. Truly, the devil is in the details; -details of which you are oblivious. Ask yourself; why do I put a hyphen between native and born? Because it belongs there. Same with “natural-born” subject. It is a term of art. But “natural born citizen” is not. No hyphen, -because none belongs.)
A natural born citizens is 1. a citizen. 2. a born citizen. 3. a natural citizen. A citizen born of citizens. An American born of Americans. A natural American. Just ask yourself: how in God’s name could anyone ever think to claim that a child born of aliens is a natural member of a group to which its parents do not belong, and are outsiders?
We all agree that would be absurd. But what is equally absurd is assuming a different outcome if the mother or father was an American while the other was a foreigner. That mix still will not produce a natural member of either parents’ nation because the word “natural” still means natural, -as in “natural member” or “natural citizen”.
Yes, it will produce a new member, a new citizen, a new legal citizen by the allowance of law or the courts, but it will not produce a new natural citizen because Nature only reproduces after it owns kind. It does not produce hybrids in the natural course of life and hybrids that occur are not considered natural because they are of two divergent origins instead of just one.
So that only leaves one question: by what authority can anyone claim that “Natural” does not mean “natural” but means nothing or means something else? There is no such authority to bind the meaning of what the framers of the Constitution carefully, and thoughtfully authored regarding the eligibility requirements of the man who would be President.
When they mandated that he must be at least 35 years of age, they did not mean that he simply had to be almost 35, -or at the least in his thirties. They meant nothing less than 35 years of age!
When they mandated that he must have lived in the United States for 14 years, they did mean that what they really meant was that he had to be a resident for a least a decade. They meant nothing less than 14 years!
When they mandated that he must be a “natural born citizen” who was born of citizens they did not mean that he could be a natural citizen by the Anglo-American fiction of law that viewed all citizens as natural citizens and therefore equal before the law. Rather, he had to have been born being a natural citizen by nature and not by legal fiction.
That means that his father and mother had to have been Americans and only Americans. Only that limitation, imposed via their language that: “No person, except a natural born citizen, … shall be eligible to the office of the President,…” would serve to defend against their greatest concern regarding abuse of the martial power of the nation by order of the Commander in Chief who was not fully American but was instead a 50-50 American, or only a common law citizen via native-birth custom, having been born of aliens who migrated to America. That concern was express by President George Washington thusly:
“Against the insidious wiles of foreign influence … the jealousy of a free people ought to be constantly awake; since history and experience prove that foreign influence is one of the most baneful foes of Republican Government.” –George Washington, Farewell Address, 1796
And that is why the President of the United States must be 100% American, and must have always been American by birth to American parents, -not by birth under America law. No citizen who was born with citizenship dependent on American law is a natural citizen because natural citizenship exists as an independent “a prior” reality aside and apart from any and every law written for outsiders. To re-quote the Sec. of State:
“There is not, however, any United States statute containing a provision upon this subject (natural citizenship), nor, so far as I am aware, has there been any judicial decision in regard to it.”
by Adrien Nash August 2014 obama–nation.com