April 24, 2014 Leave a comment
From Calvin to the Supreme Court; the Conflicting Origins of Nationality
~Most situations that are never contemplated are ever considered when writing general legislation, and thus are overlooked in the law, absent, non-existent and unaddressed. The qualifications for the Vice-President was an example lacking in the Constitution. It had to be addressed in the 12th Amendment. Another such situation similarly not mentioned was that of the citizens of the American States who happened to be born beyond American borders.
Just as almost all natural citizens are born in the country of their parents, so also, birds of the air are almost always safe and free thanks to their ability to fly. But that which is almost universally true cannot accurately be called or described as universally true even though it essentially is.
One can say that birds are fearless except for their fear of man and cats, -both of which are confined to the ground by gravity. And yet outside of that which people are normally conscious of, there is another thing that they fear, something out of the ordinary, -something that gets almost no attention at all, and yet it is very real and very deadly. That something is hawks that not only eat things like mice but also, perhaps exclusively, eat other birds, -cannibals of the bird species.
When they are around, you will not see any other birds, as I’ve witnessed when on occasions I’ve seen a hawk perching on my bird feeder structure. When that threatening reality is present, that which is almost universally true is seen for what it is; something that is not without exception.
Similarly, some American children are the rare exceptions because they were not born in America and yet they are American by their inherited political nature. Congress first mentioned them in the Naturalization Act of 1790. It’s not that there was a risk that they would be viewed as aliens since they would automatically inherit their father’s nationality. Rather, it was that they might be considered to be ineligible to be the President.
That wouldn’t matter if they were all low-lifes, but they happened to be the best of the best in a sense, -the prime class of educated, and successful American families, -the segment of society from which future leaders would come, including the sons of American Ambassadors, -some of whom would be born while their parents were serving overseas.
The collateral damage of over-looking foreign-born Americans was the exclusion of such sons from eligibility for the top leadership position.
Imagine John Quincy Adams,(6th President of the United States) the son of the future second President John Adams, (-a direct descendant of the Puritans five generations earlier, having no direct foreign lineage back to the founding of the colonies) who accompanied his father to Europe as a child.
Imagine if he were to have been born abroad while his father was serving as an American Ambassador for nearly a decade in Europe and England, -a son who might have served heroically as an officer in the War of 1812, and helped turn the tide toward victory.
Imagine someone asserting that he was not qualified to be President (even though he was the son of the second President), because he failed to enter the world within U.S. borders. THAT was the unacceptable collateral damage of a common law view of nationality that in a lesser case could have been inflicted against any worthy foreign-born American patriot who was ready to lead his nation.
Why would someone hold such a view? For a very strong reason. It was “the law”, or so it appeared. It was the common law of England which applied still in all of the colonies that became sovereign American nations. Everyone schooled in the law was schooled first and foremost in English law and the English common law that grew out of English court decisions.
Each of the colonies / State republics had their own body of legislated law as well since common law did not cover everything under the sun in America, but the only element of common law relevant to nationality was that which was central to the issue of presidential eligibility.
The Constitution required that the President be a natural born citizen, but there were two schools of thought as to what that meant, and they were not talking to each other about its actual meaning. So an unspoken schism existed in the minds of the authorities of the founders’ generation, -and beyond. It all boiled down to very, very fundamental things, -things of nature and the organizing principles of life.
In order to grasp the big picture, we need to rise above the entire realm of human society to see starkly different influences in human affairs, and see how they competed and clashed. Then we can apply that understanding to the situation in America and thereby understand the truth as well as the confusion.
The big picture begins long before human governments were established, and progressed as man progressed from a primitive state to a civilized state. The several elements of the puzzle are: Unity, Superiority, Individuality, and Equality. Each is from a different realm entirely but together they form the matrix of life, overlapping and bumping into each other and even going to war against each other.
But before all of those factors came along, a primal, “a prior” factor first existed, without which nothing would exist because life would not exist. That factor is Uniformity. It makes life as we know it possible. Life as we do not know it would be life without uniformity.
In such a world lions could breed with zebras, hyenas with gazelles, sharks with whales, etc. The off-spring would be unrecognizable to the mother. But with uniformity, the off-spring are identical to the parents; same genus, species, and usually the same breed. The mother recognizes her young as something of herself and develops a bond with her young. [That bond is part maternal and part species related. Animal mothers or wanna-be mothers will adopt young of other species but will prefer members of their own species.]
That bond, and the bond between adults who form a mating, monogamous relationship, are the foundations of human society as well. They result in the first factor of living beings, which is Unity. Without those bonds there would be no families. Mothers would abandon their young and males would abandon the females they impregnate. Life would be unable to continue.
Unity results in the evolution of societies as families grow, and form new families, and new clans of related families. A number of clans living together would constitute a tribe, as is seen in the stories of the children of Israel as told in the Bible. Israel (aka Jacob, grandson of Abraham) had twelve sons, and each of them was the source of the twelve tribes of the nation of Israel.
An outsider might join himself to one of the tribes but he would not be a natural member of the tribe because he was not of its uniform source, -the blood of its ancestors that all descendents shared. The outsider’s membership in the group was not by blood and thus was not by natural right but would be granted as a conditional gift. That is directly analogous to admission to membership in a nation via nationality law making an allowance for outsiders and their children.
Just as Uniformity and Unity represent both the animal and human realms, so also does the other facet of the natural world, and that is Superiority. It gave rise to the justification for the rule of kings over their fellow humans. It is based on the natural world in which the stronger dominate the less strong, males dominate females, adults dominate the young.
First in the pecking order is the alpha male. He is the strongest of them all and it is by right of his might that he is the head of the group. He is likely to be older than the younger and weaker members, just as older brothers dominate younger brothers.
The Natural Law that the warring human world derived from the natural pattern of the preeminence of superior strength is the law of rightful leadership, -with, in effect, might making right, -as in the right to be leader and dominate others.
The Natural Law of Superiority by strength comes with an awful Siamese twin capable of great injustice. It is the firm belief not just in one’s own individual superiority, but in the inferiority of all who are not of one’s own uniform group, -the group that is derived from Unity of origin.
That extends not just to weaker and inferior individuals but to entire outsider groups, -groups identified by language, ethnicity, religion, and race. If they all are inferior, then it is the right of the superior to be their master because that is the law of the natural order of nature and man is a part of that order.
But in a world highly influenced by religious concepts, that is a direct affront to the values of religious or spiritual beliefs based on the other aspect of Natural Law, which is Equality,
You see, there are two kinds of nature; there is physical nature and there is spiritual or philosophical nature. The higher consciousness of humans rises far above the animal level and it is that spiritual nature of man that finds itself in conflict with the physical nature patterned on the animal kingdom.
That made for an innate conflict for nations with a Judeo-Christian society and Church influence. On one hand, the strongest of warlords was the person that the people should be subservient to, he being the man who was king by superior power and the conquest victories that such power achieved.
On the other hand you had a higher natural law of the spirit, -one in which all men are created by their creator as equal individuals, -with none having a natural right to make slaves or serfs or servants out of one’s fellow humans because they have natural rights that are equal to the rights of the strong man.
You can see, these two worlds are inherently at war, -with each view striving for preeminence. If the strong man wins, everyone not close to him may lose to different degrees because of his tyrannical actions. If Equality wins, then everyone but the strong man and his supporters wins and everyone is free, -unless many believe to some degree in the rule of Superiority, -then some aren’t so free, -as was the case in the Southern slave States.
It wasn’t that Southerns viewed themselves as superior to their fellow white folks. Rather, they viewed beings of the African race as inherently inferior, and possible cursed by God according to a baseless presumption about Noah cursing one of his sons and that son becoming the father of the cursed African race.
So within the individual psyche of people, they might embrace both contrary rules of Natural Law; the spiritual Law of Equality for themselves and their own kind, as well as the animal Law of Superiority. You know which one monarchs highly favored.
They favored it too much, and were raised strongly indoctrinated in it, -being taught by loyal royal sycophants that the population of their kingdom existed in God’s scheme of things solely for their benefit since they were so inherently superior to all. That was the world’s ultimate brain-washing, and it produced poisonous results since it infected also, to a lesser extent, the entire nobility and aristocracy.
Anyone who rejected that aspect of Natural Law and embraced the higher, spiritual aspect of Natural Law known as Natural Rights (based on Equality) was a serious threat to the legitimacy of the status quo. The tyrannical actions of the aristocratic British Parliament pushed the Americans totally into the opposing camp and they grew to reject the law of Superiority and embrace the law of Equality instead. But that left the law of Unity unaddressed and unsettled.
Superiority and Equality had nothing to do with the issue of natural belonging, -of nationality, of the origin and basis of citizenship. Common law addressed the issue of national belonging and thus citizenship but it did so in a legal manner and not a natural manner.
What would be the position of the new nation if natural law were followed instead of British common law? The answer was located in the issue of the natural law of Individuality, -in conjunction with the law of Unity.
If the designer of mankind had fashioned humans with a spirit of Individuality, as a facsimile of the creator’s autonomous nature and not as drones and lemmings, then each individual had certain rights, and thus all individuals, -made from the same mold of the creator’s nature, had equal rights since there weren’t multiple molds with one being superior to the others. One of those human rights fit perfectly with the natural law of Unity.
In nature, no other mother has a right to a mother’s young. They belong solely to her and her monogamous mate. They all together form a unit, -a unity, a union that is inseparable until the young become young adults.
To also enjoy the same unity of family and family group, humans have a natural unalienable right to reject anything that violates that right. All civilized governments recognize and respect that natural right, and do not pretend that such a right is something that is given by any authority of men but is a primal right of all equal sentient beings, -beyond the authority of government to nullify or regulate.
So, not only as human animals but also as human individuals, people have an inherent unalienable right for their young to belong to them, and to also belong to their greater family, and the groups of which the parents are members. Those groups include the village, town, city, county, state, and nation of which the parents are members, -and probably also natives. That is their right of belonging. That fact is where a conflict arises with the common law rule of nationality.
The common law of nationality was invented for the benefit of foreigners who needed to be viewed as (or equal to) Englishmen in order to not be blocked from certain important rights, including the right to inherit land in England, -which was limited to Englishmen only. The English high court in the Calvin case got around the law by simply changing the focus from one being an English native to being a subject of the English King.
Any immigrant foreigner could be subject to the king and yet not be English. But though he could not become an Englishman, his children could, -simply by being born in and under the dominion of the king, -thus making them, like sons of Englishmen, fellow born subjects of the king as well.
By that court opinion, the focus of nationality shifted away from the natural Unity of the native people of the nation and to instead the over-arching authority of the king over all souls within his dominion. Thus the alien-born and those born of natives were unnaturally lumped together under one single principle-less legal concoction defined by the arbitrary factor of where one was born (within the boundaries) as well as to whom one was born (one subject to the national authority -meaning not a foreign ambassador or invader).
That is an amalgamation of two things that are unrelated except by the fact that they cover two different types of persons who are both subject to the same sovereign.
Under the natural law of Unity, -of natural belonging and natural membership, -along with individual rights, it doesn’t matter where in the universe one’s child is born. One’s child belongs to him and her who gave it life and are its parents, -and to the groups of which they are members, beginning with the immediate family.
That principle of nature cannot possibly make one a member of a group in which one is an outsider. But by the power of government or judicial authority, it can be decreed that the children of outsiders, if born within the insider’s borders, will be accepted as members also, -even from birth.
That is a man-made form of belonging, a legal form, and though it was not allowed by Parliament in the case of Calvin, it was forced into being by the decision of the judges that heard his case. From then on the rule became that it was not the children of Englishmen alone who were English, -if was anyone born subject to the king, -whether English-born or alien born.
That was the common law of Britain and the colonies. An amalgamation of outward circumstances brought together by judge-made law. Since the subject of being born subject to the king was made moot by the fact that very few sons were born of foreign Ambassadors in England or America, nor of invading foreign armies, the only element that received any attention was the other one, -the location of one’s birth.
Born within the sovereign territory of the nation? Then that makes you a subject. Or a citizen. But cracks in that seeming simplicity could be spotted by anyone who looked closely. Native Americans were the prime example of how artificial the seemingly natural simplicity of the common law rule of nationality was. They were totally unknown to the common law. Their situation did not exist in Britain. It had never been adjudicated by any judge ever.
They were born within the borders of the American States, and yet they were not deemed to be citizens. So birth place alone was a fraud and was not the sole criterion of nationality. It was something else. That something else was the same thing that had come to be ignored, namely; the requirement of subjection which in special circumstances was juxtaposed against opposing sovereignty.
Just as Ambassadors are not deemed to be subject to the sovereign authority of the government in which they serve, so also Native Americans were not subject either since they retained their own sovereignty as autonomous nations. The federal government could not give them orders that it could give to citizens, and neither could it do likewise to visitors from abroad. The most fundamental order that a government can give is the order that it can only give to its men; -the order to bear arms in national defense.
New York CONSTITUTION 1777
XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man ["every" includes immigrants as well] who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service.
And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State. ~ ~ ~
The U.S. government could not order Native Americans to bear arms for it and to fight their own people. They were exempt from such sovereign federal authority, -as were also all foreign guests and visitors, -not just foreign Ambassadors and their children. So being actually subject to “the king”, aka; big daddy federal government, actually did after all mean something beyond merely obeying civil laws.
Required subjection wasn’t just unimportant words that could be overlooked with the rationalization that “well everyone is subject to the law and to government authority”. The fallacy of that view is not that everyone is subject to the civil law, which is true, but that everyone is subject to all government executive authority and political law, which is not true. Some are not subject! But almost everyone is, -like some 98% or so if you include females.
The danger to the nation comes not from the 98% but from the very, very long shot of someone from the 1-2% being mistakenly assumed to be among the 98% and then being elected President of the United States.
What such a person’s motives might be would be unknown except through the words that he publicly speaks and writes. But if he is among the 1-2% and yet is elected President anyway, then he is a dishonest person since he would have no honest right to be President. Then his words would also be dishonest and thus believing them would result in being deceived.
When the colonies severed their ties to Britain’s government, they did not abandon the British system of law which was the legal foundation of all of them. It was not the problem. The problem had been men of government ignoring the law and the principles on which English liberty was grounded.
New York CONSTITUTION 1777:
XXXV. “And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord 1775, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same.”
All colonists agreed on the necessity of abolishing the authority of British rule (not British law), but not all of them understood that in replacing it, a new system of human rights had to be put in place, -one that would never permit the civilian rule of man over men, superior over inferior (except with the inherent contradiction of slavery being accepted by entire regions of the nation).
That required instituting principles of Natural Rights in place of doctrines of royal and divine Rights of Kings. One of those rights was in direct conflict with the well established, institutionalized tradition of the common law in America, and that right was regarding the basis of nationality.
By nature, one gradually comes to fit in and be a part of the group into which one is born and in which one is raised, -within one’s own family and one’s society. But that is not a natural principle of belonging, -it is simply the common phenomenon of acculturation. It does not take into account the nature of the parents to whom one was born, nor the values with which they raise their children, -values with may be in direct conflict with the values of the society into which one was born.
Children born of strict, medieval-minded, male-dominated Muslims who reject fundamental American values are a prime example. The traditions that they embrace are abominable to all Americans, including such things as the honor killing of one’s own children, -child marriages, and so forth. They are among us but are not of us, so simply being born into a society does not make one a member of it.
Something more elemental is needed, and that something is being born of members, -members who are of the same culture, the same values, and the same blood connection. The society’s values and culture are transmitted to the young by parents who possess them. Outsiders may or may not possess them. Some do, and even far more so than natives that take everything for granted and have no concept of how fortunate they are.
Such outsiders produce children like Marco Rubio and Tex Cruz, Rich Santorum and Nikki Haley. In totally embracing American values, they are more American than most natives of America. But what about their citizenship? What is its nature? By what is it defined? By common law or natural law?
Which one determines the definition of what a “natural born citizen” is? That is the question that has gone unanswered since the Constitution was first written. “Authorities” have embraced both views with neither view gaining clear ascendance. That is because the authority of common law nationality has never been settled when it comes to the presidency. It has been illegitimately settled when it comes to nationality alone.
That was done by the Supreme Court in 1898 when it ruled that the nationality clause of the 14th Amendment means the opposite of what it meant when it was written thirty years prior. That travesty of overthrowing the actual understood meaning of its words and ruling just the opposite to be correct, was a good thing for the children born in America of foreigners because it officially made them into Americans even if their father was too unmotivated or unable to learn English to ever become an American citizen.
Previously, they would have had to personally be naturalized as adults in order to be American citizens because it didn’t matter where one was born since the policy of the federal government was to either ignore the common law State citizenship, accepting only inherited citizenship or naturalized or statutory citizenship, or to not question the origin of the State citizenship of those applying for passport papers. To have attempted such an examination would have been a bureaucratic nightmare for everyone.
But where it drew the line was in regard to children born within U.S. borders to foreign visitors, then brought back to Europe and raised as foreigners, but who one day (as adults) requested an American passport under the assumption that they were probably American citizens since their mother gave birth to them while in America (presumed common law citizenship).
There was no law at all covering such arcane situations and so they had to be dealt with as matters of executive branch policy, -and that policy was to deny such a request on the basis that such a person was not an American citizen since they were born subject to a foreign power and not American authority. That not only violated natural law but also common law when viewed realistically.
As guests in America, the parents of such a person were not subject to American authority, and subjection was a requirement of the common law (although it was never adjudicated what that actually meant and what it did not mean.)
After the U.S. v Wong Kim Ark decision in 1898, common law citizenship officially transcended the State level and was adopted at the national level, -making both State and national policy and law the same for the first time. Thus the native-born children of immigrants were all deemed to be Americans because by the common law, they were born within American territory and were supposedly subject to the authority of the American government, -just as had been the tradition in Britain following the Calvin case.
Immigrant-born children were thereby acknowledged as being citizens, -but what about the issue of presidential eligibility? That opinion of the court settled nothing when it came to that issue because the true meaning of what a natural born citizen is had never been defined by any lawfully constituted authority, nor was it in that case.
So the question is: “Is it defined purely by the common law or purely by Natural Law?’
It occurs to me that the answer is knowable but it has been mostly an answer determined by the perspective of each beholder. Any lawyer / authority in the young and evolving nation who was schooled in the highly respected British law and common law, would have held a respectful deference to the rule of the common law and its manner of determining nationality, oblivious to its innate conflict with Natural Rights, -not to mention international relations.
What was that conflict? It was and is a sword of contention that goes straight to the heart of human existence. It splits those who stand for fundamental American values from those who unconsciously side with the powerful over the powerless, Superiority over Equality, Multiplicity over Unity, human mandate over Natural Rights, the Government over The People. It goes to the two questions that are at the heart of human life:
“Who owns you?” and “Do humans have unalienable natural rights?”
If you actually own yourself, then that means that you at least possess a natural property right, with that property being yourself. But it would not stop at yourself because your natural right of self-ownership would include your children as well, and your spouse because they would be an extension of who and what you are. And it would be inseparable from a right to belong to each other, as well as to your greater family, and the greater groups of which you are a part, including the group known as your country.
It would mean that you have an innate right to be a member of your society and nation, -the land of which you are a native. And it would mean that that right is inviolable and untouchable by government because it supersedes the authority given to the government by those who created it.
So if you possess the right of all individuals to own themselves and their progeny, and to belong to each other, then the common law crumbles, -the common law sky under which all have lived wouldl fall because it declares that you belong to government, and also that government policy, tradition, court opinion, or legislation, determines whether or not you will be accepted as a member of your own people, your own society. Your nationality is either governed by the rules that the government makes or it is determined by primal natural rights that supersede government.
But the right to belong to the land of your birth and maturation is different from the right to belong to your own people. That was demonstrated by the 1898 case that prompted the U.S. Supreme Court to make common law nationality the policy of the American government. It involved the conflict between nature and acculturation.
A young Chinese man (Wong Kim Ark) was denied re-entry into the U.S. at the San Francisco port upon returning from his second visit to his grandparents in China. The federal agent in charge deemed him to not be an American citizen (despite having been born and raised in San Francisco) since he was born of foreigners, but even worse, of parents who were of a race which was barred from U.S. naturalization.
In the government’s eyes, he needed a Visa from an American Embassy in China in order to enter his own country. (!) He was an alien to American society, as were all Chinese, so why would he be considered to be an American? Nature argued against it. Naturally belonging to one’s own people argued against it. His own people were from across the globe. Why should he not be considered to be born of them and not born of us? Something had to give. Reason and natural law or justice and equality. A super classical conflict of different elements of existence.
The 14th Amendment, whose interpretation would decide the issue, was intended to make citizens of all the freed slaves, -not make citizens of all the children of immigrants who failed to become Americans, but its wording was so open to various interpretations that it could easily be extended beyond its public purpose to include them.
Those in Congress who passed it were aware of its innate ambiguity and understood that once it became a part of the Constitution, then the Supreme Court could change it in ways that Congress was politically unable to do. And that is just what the court did.
By a split vote it sided in favor of the common law rule of nationality being accepted at the national level, but neither its opinion nor the 14th Amendment addressed the issue of the fundamental basis by which citizenship is acquired.
Was Natural Law supreme or was Common Law supreme, or were they both just kind of taken together but with neither openly acknowledged. Like natural children and adopted children in one family. No answer was ever given to the question: “Why am I an American? Is it because I was born in America or because I was born of Americans? Is one sufficient or are both necessary?”
That conflict will be invisible to almost everyone because almost everyone is among the 98% who are both and thus fit the description of one who is a citizen by the prescription of the common law. But what of the tens of thousands of American children born abroad?
No one cares about their plight because they don’t have a plight since the law declares them to be citizens of the United States and has done so since 1790. See the short-coming in that? I didn’t think so.
It is what the law does not declare them to be that is the problem. It does not declare them to be natural born citizens. So are they or are they not natural born citizens and why should anyone care?
They would only have a concern if their favored candidate for President was born abroad. In that case, either something very right will prevail or something very wrong will prevail. Justice or injustice? That is what this all boils down to. Who does not get to be President? Since the President can save or ruin our future, the question could not be of greater importance.
Is the term “a natural born citizen” a term of the common law and therefore covers all children of aliens? Or is it a term of Natural Law and only covers children of citizens? Can the commander of all of the American military and nuclear power be someone born to and raised by aliens, even in a hostile foreign land? Is that what the founding fathers intended to allow the nation to be subjected to?
But there’s a more precise question that should be asked first, and it goes beyond using the word “alien” to describe the parents of one born of foreigners. It must use a more descriptive label because reality is more complicated than the simple noun alone might indicate. It is the question: “Can the American President be someone born in the U.S. to non-immigrant aliens?”
The federal government clearly delineates between immigrant aliens and non-immigrant aliens because the latter do not have Green Cards allowing permanent U.S. residency, and may even be here illegally.
We must answer that question before attempting to answer whether or not the President can, by the common law upheld in the Wong decision, be born of immigrant alien parents.
If we cannot find and identify the principles and precedents that determine the answer to the most extreme scenario, then we surely will be blind to them in the more moderate scenarios. And that has been the case throughout American history.
No one addressed the most extreme scenario in order to determine what the principles are that needed to be identified to answer the question about nationality and the presidency. The ignorance of endless generations, and the brain-washing resulting from the power of British law on the minds of American jurists has never lead anyone to trace the source of nationality back to its origin. They all simply stopped at the common law and the Calvin case, and went no further, and so they remained in ignorance regarding the true nature of nationality, -gazing instead at the mirage of the common law compound that joins the disparate elements of natural and human determinants.
I suspect that the founders and framers of the state and national Constitutions saw the world through the lens of philosophical Natural Law and Natural Rights, while those who came after them, those who did not have to ever pledge their lives, liberty, fortunes and sacred honor to a treasonous rebellion for the sake of Freedom, only saw the world through the lens of the old, the traditional, the established strong hand of government, and the common law that pertained to a monarchy and its subjects, and not to a democratic union of free sovereign republics and free people.
I suspect that the evidence of such a split between the founders and the neo-loyalists of the British system was left in the earliest legislation passed by the first Congress and later changed by the third Congress. I suspect that the split was along party lines, and there was a change of power in Congress what resulted in a shift that left a lasting impression in the legal record that no one has ever adequately explained, but for which I have a new theory. It is seen in the first and second naturalization acts; 1790 and 1795. A change was made and its purpose is still misunderstood today.
If a child of Americans is born abroad, that fact changes nothing because all such children are born (latently) subject to their parents’ government and will be actively subject at adulthood. But if such a child never lives in the U.S. but marries and produces a child in the foreign land of his birth (or any other) his child will not be a natural citizen of the United States, and will not even be an American because he will be a native-born child of the native-born parents of another country. By American law he will not inherit his American parent’s citizenship.
That law is as old as the nation and was an element of the first naturalization act in 1790. It was added as a means of drawing a limit on inherited American citizenship for persons who had no connection to America and who were born subject to the foreign power of their land of native-birth.
Americans did not originate that aspect of nationality law. It was borrowed almost verbatim from the British nationality act of 1775 (if I recall correctly). Our version stated: “-the right of citizenship shall not descend to persons whose fathers have never been resident in the United States”.
Those words reveal two immensely important facts. First; the citizenship of the children of citizens descends (from father to child). It is not acquired from, nor granted by government. It is not tied to the location of the mother at birth. Instead it is the result of inherited national membership which is the “right” of every child of every American everywhere in the world, -except the second-generation of the foreign-born.
That limitation was preceded by this declaration of fact: “And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens“
But the sentence that precedes it states: “And the children of such person (foreign father) so naturalized,…shall also be considered as citizens of the United States” (like their father).
Why did the authors change the language when one sentence follows right after the other? That had to be quite deliberate. Why change the terminology from that used to describe the children of naturalized foreigners to that describing only those who are eligible to be President?
The words “natural born citizen” appear nowhere in the Constitution or American life except in regard to the type of citizen who is eligible to be President. They have no other use.
All other offices (House & Senate, as well as appointments) require only that one be a citizen of the United States. [Other nations do not allow naturalized citizens to serve in their national legislative bodies, with our neighbor Mexico being one of them. But the young nation was an undeveloped land being enlarged in part by the arrival of valued immigrants, and they were welcome to be Americans and to be active and involved citizens, -citizens who were equal to those whom they joined in citizenship. But no naturalized citizen was allowed to be President after the first generation.]
So there in that text, Congress identified foreign-born Americans as being not only Americans by natural right of inheritance but also as citizens eligible to be President. That meant that their citizenship had nothing whatsoever to do with the rule of the common law. That identification of them as being the natural born citizens that nature made them, was to protect their right to serve as their country’s leader if destiny opened that door one day.
But it came at a cost since the issue of who was eligible to be President was a zero-sum game. Identifying them as natural born citizens meant something profound for others, for others who absolutely had to be born within the United States or they weren’t even citizens, much less eligible to be President, and they were the sons of immigrants who were not Americans when their sons was born.
If Americans born of Americans were natural born citizens, (regardless of birthplace) then common law Americans born of foreigners were not, even if their father became an American the very day after their birth. To a significant percentage of the voting population, that did not seem fair since they themselves were such sons or related to them. See any parallels to today?
So, if that language was allowed to stand, all such American sons would be disenfranchised from the American right to serve as the President of the United States one day. A resolution was provided by the third Congress in 1795 when it revised and expanded the naturalization act, but the solution was merely to change that which was clear to that which was not clear and was thus unsettled.
It relabeled the foreign-born American children by combining their declaration of citizenship with that of the children of naturalized fathers in one sentence, calling both groups of children “Citizens of the United States”. That protected them from what happened to young Mr. Wong Kim Ark, -barred from re-entering his own country, and also guaranteed their civic citizenship rights and eligibility to elected office.
SEC.1 ~ “He shall, at the time of his application to be admitted, declare on oath or affirmation… that he will support the constitution of the United States; and that he does absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whatever, and particularly by name, the prince, potentate, state, or sovereignty, whereof he was before a citizen or subject; which proceedings shall be recorded by the clerk of the court.”
“SEC. 3. And be it further enacted, that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years, at the time of such naturalization, and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States: Provided, That the right of citizenship shall not descend to persons, whose fathers have never been a resident of the United States”.
Only it didn’t clarify nor protect their eligibility to serve as President. Thus one could assert that since foreign-born Americans are no longer openly identified as natural born citizens, then maybe they aren’t. And… maybe native-born children of foreigners are.
It opened the door wide for speculation and that was adequate for those who wanted to share in the right to dream of the possibility of being President one day. Of course if the parents were wealthy and influential foreigners who had emigrated to America, it would have been seen as something more than the right to dream, but as the right to succeed.
So with the dropping of the wording identifying foreign-born Americans as natural born citizens, an ambiguous opening was created which might one day be successfully exploited by claiming the supremacy of the common law nationality rule in America.
And that is exactly what happened in 2008 from the perspective of those who supported the eligibility of Barack Obama, -which didn’t include the leadership of his own party. They knew that he was not eligible but they also knew that most Americans did not know that and they could get away with offering his up as their candidate. What they did, successfully.
Nothing in American law or court opinion had ever spelled out what the basis of citizenship was in the United States. But that does not mean that it was unknown. It was thoroughly explained by David Ramsay, -a founding father, jurist and historian who was there throughout the revolution and founding of the nation. He explains in crystal clear terms the truth of the matter regarding American citizenship.
I’ve written an extensive exposition on his dissertation on the subject, and together all questions are answered and all doubt is eliminated. [It is not yet upload to the internet but will be by the end of April I expect]
The common law Americans who asserted their right to be President base their certainty on the common law meaning of a “natural-born subject”, claiming that both terms are directly related, and the American version means the same as the British common law version.
But that argument is seen to be without foundation when one looks at how the American version was written by the man who suggested it as a necessary requirement to wield the power of the Command in Chief. He, John Jay, future Chief Justice of the Supreme Court, and associate of General Washington, underlined the word “born” (which I’ve extensively analyzed elsewhere).
There is no conceivable rational reason to ever underline either of the modifiers in the British term “natural-born subject”. The false logic that equates it with natural born citizen argues that the term “natural-born” is the same in both terms, -only “subject” is changed to “citizen”. That means that the individual words do not have individual meaning, -which means that they are only taken together as a two-word unit that modifies the nouns “subject” and “citizen”.
But one cannot underline, as John Jay did, an individual word that has no individual meaning. You either underline both of them or neither of them. The fact that he underlined “born” indicates that both of the two words were actually individual adjectives with individual meaning, -one of which he wished to emphasize.
That further means that the word “natural” does not pertain to the word “born” anymore than the word “wise” pertains to the word “old” in “wise old man”. Where is there such a term as “wise old”? Similarly, there is no such term as “natural-born”. Instead the three-word term is an expression combining “natural citizen” with “born citizen”, -just as “wise old man” combines “wise man” and “old man”.
Thus their theory that John Jay could not have possibly used two common English language adjectives in their common usage falls apart. Their logic holds no water. That means the words mean what they say and not what the common law had perverted them to mean in the English system by turning them into a sort of legal fiction which categorized together two very different groups of people (natives and foreigners).
If John Jay had not underlined the word “born”, there would be a bit less certainly about what a natural born citizen meant to George Washington, -the man who would first fulfilled its requirement and served as President and Commander-in-Chief.
To him and to those in the constitutional convention with the same vision of fundamental American principles, the words were not a distorted, fictional version of a compound English language term that they were forced to employ to prevent foreign influence at the top of the American government. The underlining of just one of those words is one more nail in the coffin of the the view that they were still willingly accepting the British common law basis of nationality at the national level. They were beyond that unnatural legal amalgamation and into and back to that which was by the law of nature.
They were a brotherhood of Liberty-loving countrymen, and no one was allowed into that brotherhood except by being born into it, -born of its members, or sworn into it by a personal solemn oath before a magistrate given in a court of record including swearing allegiance to the U.S. Constitution and openly rejecting and renouncing specifically by name one’s life-long former sovereign.
It was a cutting, -a severing of one’s political umbilical cord to the government of their homeland and the adopting of a new umbilical cord to America. A divorce from one’s former political husband and marriage to a new one all in one momentous moment.
So membership was only by blood or by oath, -not by birth location even though the States continued to treat the alien-born native “sons of the soil” as citizens. Such a conundrum and conflict could not find reconciliation and never has. Instead the conflict is ignored or rejected in the minds of those who embrace the British common law view of citizenship by government mandate.
Those who embrace Liberty and individual rights will not accept the rules and doctrines of government as being the basis of their natural right to be a member of their own family, clan, country, or nation.
Which one do you embrace? Are you a loyalist toward British common law and the supreme authority of government? Or are you a patriot toward the supremacy of Natural Law and natural belonging?
Who do you believe owns you? Yourself, or the Government? Who do you believe has a natural right to be an American, outsiders and their off-spring, -or only insiders, Americans, and theirs?
That question doesn’t ask about “the right” to be an American. It asks about the natural right, because the presidency is not precluded to those with a natural right but only to those with merely a legal right to be Americans.
Was your father an alien when you were born? Was he an immigrant to America with a Green Card granting a right to permanent residency? If so then you were born with a legal right to be an American thanks to Supreme Court opinion in the Wong case based on the 14th Amendment based on the common law based on the Calvin case opinion that was over 400 years ago.
But that means that you are not eligible to be President because it means that you are not a natural citizen of the United States. You are merely a legal citizen. A common law citizen. A 14th Amendment citizen. A Wong opinion citizen. A Calvin case citizen. And therein lies the difference.
Natural versus legal. There is no middle ground in logic nor fact, but there is plenty of motive to ignore and deny both. And that is exactly what the supporters of the Obama regime do and have done from the beginning.
Will they succeed at it forever? Possibly. But a new wind is blowing in America. But no little wind will move a ship as big as the American political landscape. It would require an enormous wind, -or… a hand full of judges willing to do the right thing. We have so far not seen a single judge in America who was so willing. That is a very, very bad sign.
Why is it so bad? Because it is very likely not due simply to ignorance on their part, because curiosity can naturally intercede when uncertainly is present, but probably due to one thing and one thing only, and that is fear.
Everyone whose eyes have been opened in resent years has come to strongly suspect and see proof that the law of the jungle has returned to dominate the “rule of law” in America. The law of Superiority has replaced the law of Equality.
The government alpha males are now the lords who do not need the permission of the American sheep that they herd as they are able to manage by hook or by crook, with their supporters on the supreme court validating their unconstitutional usurpation of the rightful authority of the States and The People.
When the cards are stacked in the court of courts, then the only things left are revolution or the replacement of those in power who allow and perpetrate the relentless parade of crimes against the American people and the United States Constitution.
by Adrien Nash April 2014 obama–nation.com