Expert Renunciations of the Birther NBC Definition

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Expert Renunciations of the Birther NBC Definition

#151

Post by ballantine » Tue Oct 19, 2010 5:51 pm

At his point I think we are just talking past each other. Let me put this as simply as I can:(1). There are modern justices who define the constituion by looking at all contempory authority to understood what the relevant terms were understood to mean at such time, they do not in any way limit such inquiry to the common law. You will find no quotation from Scalia, for example, suggesting such limitation to the common law, as it makes no sense.(2). These justices have placed such original understanding ahead of contrary dicta. (3). A substantive argument can be made that the framers understood the relevant terms in accordance with English law that is different than your interpretation(4). It is possible the court would disagree with your interpretation. Honestly, I don't see how you can disagree with any of these. If you want to argue that dicta in Wong Kim Ark is contrary to this, you can. That doesn't mean such dicta will prevail over a substantive arguement that the original understanding was different. In reality, you overstate what Wong Kim Ark addressed as they did not define the limits of naturalization or any argument out side of the common law. In addition, the court did not say the statutory meaning of the term was irrerlevant to the common understanding at such time. Your just making that up. I said from the beginning that post-ratification authority favors your interpretation. However, if you think this settles the issue, you are just wrong. I have never said my argument was compelling. I said it was plausible. I still don't get your fixation with the common law.

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Expert Renunciations of the Birther NBC Definition

#152

Post by nbc » Tue Oct 19, 2010 6:17 pm

At his point I think we are just talking past each other. Let me put this as simply as I can:(1). There are modern justices who define the constituion by looking at all contempory authority to understood what the relevant terms were understood to mean at such time, they do not in any way limit such inquiry to the common law. You will find no quotation from Scalia, for example, suggesting such limitation to the common law, as it makes no sense.(2). These justices have placed such original understanding ahead of contrary dicta. (3). A substantive argument can be made that the framers understood the relevant terms in accordance with English law that is different than your interpretation(4). It is possible the court would disagree with your interpretation. Honestly, I don't see how you can disagree with any of these. If you want to argue that dicta in Wong Kim Ark is contrary to this, you can. That doesn't mean such dicta will prevail over a substantive arguement that the original understanding was different. In reality, you overstate what Wong Kim Ark addressed as they did not define the limits of naturalization or any argument out side of the common law. In addition, the court did not say the statutory meaning of the term was irrerlevant to the common understanding at such time. Your just making that up. I said from the beginning that post-ratification authority favors your interpretation. However, if you think this settles the issue, you are just wrong. I have never said my argument was compelling. I said it was plausible. I still don't get your fixation with the common law.I am not just arguing Wong Kim Ark, which you attempt to dismiss as mere dicta, I am following the logic through Rogers v Bellei and Miller v Albright. I accept your argument as possible, not necessarily plausible as it relies on a set up assumptions that I feel have been poorly developed. Lacking substantive arguments, I am not convinced that I have to accept your position as plausible.It is surely possible, as you claim, that the Court would disagree with my interpretation however that would require it to reject some pretty solid findings by the Courts ever since Wong Kim Ark was passed. Nothing is of course beyond the powers of the Court, it's just a matter of plausibility.For instanceWe start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the "natural born" citizen is eligible to be President. Art. II, § 1. [p166]in Schneider v Rusk, clearly suggests that there are two rights of citizenship discussed here, being native born or being naturalized where naturalized differs in only one aspect, namely eligibility to be president.Such conflation of native and natural born is found throughout the Courts, scholarly research, all pointing to the same conclusion that the two are considered to be the same concept. Now surely the Court may reject such observations as mere dicta, and may decide to ignore the clear arguments that led to courts to what may be considered to be dicta, but it seems rather premature to reject the Courts well argued positions as 'just dicta'.Even if you were right that they are dicta, they are based on solid foundations of reason, logic, historical and scholarly understanding and should not be dismissed just because...I am interested in a discussion which goes beyond the purely speculative and at least attempts a more coherent argument that can be discussed, and for which supporting arguments can be formulated based on factual data.For instance, one can take the premise that the Founders intended to include children born abroad to US citizens as natural born, which would mean that such children's status is covered by the Constitution and cannot be taken away. Once we accept the premise and its conclusions, we can look at the facts, which appear to be contradicting the conclusion, if any. We find them in US v Wong Kim Ark, we find them in the fact that Congress, accidentally, failed to extend citizenship to a class of such children, from the 1802 law until it was rectified. We look at Rogers v Bellei, which shows how Congress can take away the Citizenship of such children, and come to the conclusion that at least the premise that natural born citizen included children born abroad to US citizens, leads to a conclusion which is at odds with the facts, and the position of the Supreme Court.And thus, rather than speculate about what the Courts may or may not do, we can look at what the Courts have done so far to determine how well their positions would support a certain premise. So far, accepting a certain premise, in two cases now, I have come to find contradictions which have forced me to have to reject the premise. I am hoping that someone can provide a better premise/argument that would match the facts as we know them. Hoping that the Court will rule against itself, will consider Wong Kim Ark's arguments historically flawed etc, are of little value really.

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Expert Renunciations of the Birther NBC Definition

#153

Post by elliewyatt » Tue Oct 19, 2010 6:23 pm

Have the grocery stores been giving away free Wheaties this week? :shock:

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Expert Renunciations of the Birther NBC Definition

#154

Post by nbc » Tue Oct 19, 2010 6:45 pm

I have written the following [/break1]me/prpgW-3yc]on my website, and since it addresses originalism, Heller and Natural born in a single article, I would like to share it here:Lawrence B Solum has written an interesting, thought [/break1]michiganlawreview.org/articles/originalism-and-the-natural-born-citizen-clause]provoking article, in the Michigan Law Review where he explores how one would establish the meaning of the term "natural born citizen" under Originalism.Pointing out the 'new' Originalism approach as outlined by Scalia in Columbia v. Heller:In interpreting this text, we are guided by the principle that "[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning." . . . Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.But, as Solum observes, the term natural born citizen is irreducible, in the sense that it cannot be reduced to its individual components. In other words, the term is idiomatic. So how does one establish the 'normal and ordinary' meaning of the words when the phrase itself is idiomatic? Solum points to Blackstone who argues that "terms of art "must be taken according to the acceptation of the learned in each art, trade, and science.""As Solum points out, the term natural-born had a technical meaning in English law and "those learned in the law in the framing era would have been familiar with Blackstone's Commentaries."Blackstone clearly describes the term to mean 'born within the dominions of the Crown of England' but, also describes the statutory use of the term where children born abroad to natural-born fathers, would be natural-born, "to all intents and purposes". The latter statement does add some ambiguity to the term and since statutes cannot overrule the Constitution, unraveling the exact meaning becomes importantSolum then looks at Calvin's case:The concept of allegiance to the sovereign at birth (as noted by Blackstone), then, was the fundamental criterion for who was-and was not-a natural born subject. The notion of natural born subjects under British law was tied to the idea of natural allegiance to a sovereign. Natural allegiance was based primarily on being born within the territory subject to the sovereign's rules. But it could also be based on being the children of Ambassadors or children of Sovereigns themselves: members of these groups were considered to have a natural allegiance to the sovereign.leading to the conclusion that If the American conception of "natural born citizen" were equivalent to the English notion of a "natural born subject," then it could be argued that only persons born on American soil to American parents would have qualified. This might lead to the conclusion that McCain would not be a natural born citizen under the Constitution because the Panama Canal Zone was not the sovereign territory of the United States but was instead merely subject to U.S. administrative control. On the other hand, the notion of a natural born subject might have been more flexible, encompassing all those who acquired citizenship at birth (as opposed to those whose citizenship was conferred after birth by "naturalization").Solum then addresses the term subject versus citizen and establishes that the two phrases "natural-born subject" and "natural-born citizen" are equivalent, which would once again limit the term to persons born on American soil.Solum continues to explore how under the Republican theory, children born to citizens would be equivalent to children born to the Crown and since the latter were natural born citizens under Common Law, such children in the US could be argued to be natural born as well. Solum references the 1790 naturalization act to support this position but observes that the act itself leaves an ambiguity. The term "shall be considered as natural born citizens", could mean that they were not actually "natural born" but were treated as such, but then under this interpretation McCain would not qualify as natural born based on the".. conventional and widely shared assumption that Congress lacks power to alter the meaning of the Constitution through legislation."Solum concludes thatThe original public meaning of the natural born citizen clause may not suffice to answer the question whether John McCain is eligible for the office of President of the United States.

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Expert Renunciations of the Birther NBC Definition

#155

Post by Sterngard Friegen » Tue Oct 19, 2010 6:53 pm

Maybe I can put an end to this debate:McCain is not going to be running again.And the issues presented by Bobby Jindal and Barack Obama do not implicate the issues of this great debate.(To try to have the last word -- I know I won't -- I doubt that 5 justices of SCOTUS, or any more than 1, would deprive NBC status to the child of an American soldier who served overseas with her husband. As with all methods of legal reasoning, they would find a way.)

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Expert Renunciations of the Birther NBC Definition

#156

Post by TexasFilly » Tue Oct 19, 2010 6:55 pm

Have the grocery stores been giving away free Wheaties this week? :shock: =))
I love the poorly educated!!!

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Expert Renunciations of the Birther NBC Definition

#157

Post by nbc » Tue Oct 19, 2010 7:09 pm

Declaration and Resolves of the First Continental Congress October 14, 1774Resolved, N.C.D. 5. That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.Resolved, N.C.D. 6. That they are entitled to the benefit of such of the English statutes, as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.Which outlines what parts of English Common Law and English Statutes became part of the former colonies.

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Expert Renunciations of the Birther NBC Definition

#158

Post by nbc » Tue Oct 19, 2010 7:11 pm

Maybe I can put an end to this debate:McCain is not going to be running again.And the issues presented by Bobby Jindal and Barack Obama do not implicate the issues of this great debate.(To try to have the last word -- I know I won't -- I doubt that 5 justices of SCOTUS, or any more than 1, would deprive NBC status to the child of an American soldier who served overseas with her husband. As with all methods of legal reasoning, they would find a way.)They could follow Lohman's proposal that such children are born under US allegiance or at least protection

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Expert Renunciations of the Birther NBC Definition

#159

Post by Sterngard Friegen » Tue Oct 19, 2010 8:02 pm

Think about it. The whole idea of an infant being infused with "allegiance at birth" is preposterous. In fact, the whole reason for the clause was to keep Baron von Steuben from coming over here and taking over or being installed King of this little piss pot of a country.

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#160

Post by nbc » Tue Oct 19, 2010 8:25 pm

Think about it. The whole idea of an infant being infused with "allegiance at birth" is preposterous. In fact, the whole reason for the clause was to keep Baron von Steuben from coming over here and taking over or being installed King of this little piss pot of a country.Yes, this is also what confuses Birthers who do not appreciate how the term owing allegiance is to be interpreted. Basically it means nothing more than born under the protection of and owing obedience to the laws of.Allegiance is a tricky concept but well explored by the Judiciary.

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Expert Renunciations of the Birther NBC Definition

#161

Post by Sterngard Friegen » Tue Oct 19, 2010 9:17 pm

After all, we can all agree that Congress cannot limit Constitutional rights through statutes?We most certainly cannot. Congress may limit Constitutional rights if the limitation passes muster under the appropriate standard of review. For example, laws which discriminate by race or limit a fundamental right must pass muster under strict scrutiny: they must serve a compelling government interest by the narrowest means, and the government bears the burden of proving it. Laws which discriminate by sex (and some other undefined things) must pass intermediate scrutiny: they must serve an important government interest by a means substantially tailored toward that end. Laws which are nondiscriminatory and do not impact fundamental rights get almost a free pass: rational basis scrutiny. Under rational basis scrutiny, a law must serve a legitimate purpose by rational means.It depends on when. The Alien and Sedition Acts (from 1798 through 1918) would clearly be unconstitutional under modern jurisprudence, even Scalia's. But at the time each enactment occurred the Act was thought by the courts to be a Godsend and a violation of no one's rights.

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Expert Renunciations of the Birther NBC Definition

#162

Post by nbc » Tue Oct 19, 2010 9:29 pm

Additionally, you have this strange notion that terms are "undefined in the Constitution." Except for a few phrases, which are at least partly defined in the Constitution, most terms used in the Constitution are not. Most terms in the Constitution are supposed to be interpreted, not defined.


Your quarrel is with the Courts, not with me. But if you disagree, could you explain to me where the term "natural born citizen" is defined in the Constitution?





Let me provide you with some examples





215 Natural born citizens Not defined by the constitution Resort had to the common law





The constitution of the United States as originally adopted uses the words citizen of the United States and natural born citizen of the United States and citizen of the United States at the time of the adoption of this constitution that instrument nowhere defines these words either by way of inclusion or exclusion except in so far as this is done by the affirmative declaration contained in the fourteenth amendment that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the states wherein they reside and resort must be had to the common law to ascertain their meaning. The constitution was written in the language of the common law whose principles and history were familiarly known to the framers of that instrument and the people of the states who adopted it and in respect to the words citizen and natural born citizen and citizen of the United States at the time of the adoption of the constitution as in other respects that instrument must be interpreted in the light of the history and principles of the common law.


Source: C.L. Bates, Federal procedure at law: a treatise on the procedure in suits at common law


centerhttp://books.google.com/books?id=EOY9AAAAIAAJ&pg=PA195&img=1&zoom=3&hl=en&sig=ACfU3U3X-cUH0hwogsQ7Z1JMHH4ZbHlyZw&ci=107%2C536%2C745%2C628&edge=0[/img]





It must be read in the light of the common law. "That," said Mr. Justice Bradley in Moore v. United States, 91 U. S. 270, 91 U. S. 274, referring to the common law,





"is the system from which our judicial ideas and legal definitions are derived. The language of the Constitution and of many acts of Congress could not be understood without reference to the common law."





Again, in Smith v. Alabama, 124 U. S. 465, 124 U. S. 478, is this declaration by Mr. Justice Matthews:





"The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history."





In United States v. Wong Kim Ark, 169 U. S. 649, 169 U. S. 654, Mr. Justice Gray used this language:





"In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. 88 U. S. 422; Boyd v. United States, 116 U. S. 616, 116 U. S. 624-625; Smith v. Alabama,@ 124 U. S. 465."





See also Kepner v. United States, post, p. 195 U. S. 100; 1 Kent, Com. 336.


Source: Schick v. United States, 195 U.S. 65 (1904)

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Expert Renunciations of the Birther NBC Definition

#163

Post by nbc » Tue Oct 19, 2010 9:31 pm

1. Do you define common law as judge-made law only as opposed to statutory law?That is how I understand its meaning, not to be confused with the fact that statutory law cannot become incorporated in Common Law. But it's through the combination of Common Law and Statutory law that the Courts reach their decisions. In that sense they are not separate yet still distinct concepts.Just plain wrong. As I pointed out, much of what became common law originated in statute, including many of the prerogative writs. You can't simply ignore that and continue repeating this falsehood and have it be unchallenged.Your accusation has no foundation in fact. I am neither ignoring your statement nor repeating a falsehood. So let's try to maintain a more mature level of discussion... 8>

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Expert Renunciations of the Birther NBC Definition

#164

Post by nbc » Tue Oct 19, 2010 9:40 pm

There is literally no federal common law on the meaning of the phrase, as no court has made any binding pronouncements on the subject in its ratio decidendi.I think you are missing the point here. It's not that there exists no federal common law on this topic, it is that the term had to be found in the common law of those days which had included English Common Law, as appropriate, as its foundation.The phrase "natural born citizen" was, as far as I can tell, looked at by several courts to establish the citizenship status. Minor v Happersett, US v Wong Kim Ark. Minor v HappersettAdditions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that 'no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,' and that Congress shall have power 'to establish a uniform rule of naturalization.' Thus new citizens may be born or they may be created by naturalization.Similarly, in answering the Government's position that argued against the lower court finding which had found WKA to be natural born, the Court addressed the meaning of the term by observing that the term remained undefined in the Constitution and that its meaning thus had to be found in Common Law. A very defensible position given the circumstances. The Court then, meticulously analyzed the Common Law in England, the colonies, and the early republic, incorporating scholarly findings to establish the meaning of the term natural born citizen. It explicitly rejected the jus sanguinis concept as a foundation for citizenship other than through statute.Our friend Tes has done an excellent job at tracking the usage of these terms in [/break1]typepad.com/whats_your_evidence/scotus-natural-born-citizen-a-compendium.html]Supreme Court Rulings. They are an invaluable resource to anyone interested in becoming more familiar with how the term was being used.This page excerpts all U.S. Supreme Court opinions that use the term "natural born citizen", based on a search conducted in Justia's Supreme Court Cases for that quoted phrase. The purpose of this compendium is to provide a a general understanding of how - and in what context - the US Supreme Court has used the term "natural born citizen."In addition she has prepared a compendium of scholarly resources as well [/break1]typepad.com/whats_your_evidence/the-natural-born-citizenship-clause-updated.html]legal scholarship

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#165

Post by nbc » Tue Oct 19, 2010 9:58 pm

I had forgotten about Hollander v McCain


in its order granting Motion to Dismiss, udge Joseph N. Laplante observed





This is not to demean the sincerity of Hollander’s challenge to McCain’s eligibility for the presidency; as discussed supra Part II, that challenge has yet to be definitively settled, and, as a number of commentators have concluded, arguably cannot be without a constitutional amendment. What is settled, however, is that an individual voter like Hollander lacks standing to raise that challenge in the federal courts. See Dugan & Collins, supra, at 115 (recognizing debates over meaning of Art. II, § 1, cl. 4, but concluding that voters lack standing to raise that issue judicially). Indeed, “[t]he purest reason to deny standing is that the plaintiff is not able to show an injury to the voter interest, however much the plaintiff may feel offended by the challenged practice.” Charles Alan Wright et al., Federal Practice & Procedure § 3531.4 (2d ed. 1984 & 2007 supp.) (footnote omitted). Because Hollander can show no such injury, this court lacks jurisdiction over his attempt to resolve the question of McCain’s eligibility under Art. II, § 1, cl. 4. Whatever the contours of that constitutional provision, Article III has been definitively read by the courts to confer no jurisdiction over this kind of action.Hollander had argued in his first amended complaint that McCain was granted citizenship under a statute which "declares Senator John McCain a "naturalized" citizen" and as the Court in Schneider v Rusk observed, the difference between a "native born" citizen and a "naturalized" citizen differs in the matter of eligibility to be President.





That darn standing again... :-

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Expert Renunciations of the Birther NBC Definition

#166

Post by nbc » Tue Oct 19, 2010 10:11 pm

Additionally, you have this strange notion that terms are "undefined in the Constitution." Except for a few phrases, which are at least partly defined in the Constitution, most terms used in the Constitution are not. Most terms in the Constitution are supposed to be interpreted, not defined.Your quarrel is with the Courts, not with me. But if you disagree, could you explain to me where the term "natural born citizen" is defined in the Constitution?An obsolete treatise is not "the courts."[snip irrelevance]Quote something saying that in every single instance, common law is the method of interpreting the Constitution, or stop saying it. What you quote says that in ONE PARTICULAR CASE, one particular long-obsolete treatise said that for this one case, the common law was necessary. Nobody would say that as a universal rule. At least nobody who knew what they were talking about.I once again point our your unnecessary ad hominem suggesting that I do not know what I am talking about as if this were a valid argument against the issues I raised. You appear to be calling Wong Kim Ark obsolete which is fascinating to me as it appears to present the 'argument' that Wong Kim Ark somehow has become irrelevant. Or is there some other 'treatise' which you have deemed to be long obsolete for no apparent reason other than that it disagrees with you?Nor am I saying that there is one particular case that states that when terms remain undefined its meaning should be found in Common Law. So I am not sure where you are going with your 'arguments' here.Perhaps rather than attacking anything and anyone that disagrees with your position, you could make an effort to show why the treatise is long obsolete.Let me refresh your memory as you may have forgotten what the Judge in Wong Kim Ark foundThe Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. [p655]

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#167

Post by nbc » Tue Oct 19, 2010 10:14 pm

The phrase "natural born citizen" was, as far as I can tell, looked at by several courts to establish the citizenship status. Minor v Happersett, US v Wong Kim Ark.Do you really still completely fail to grasp the difference between dicta and holding?Again focusing on the ad hominem and ignoring what I did say?





Truly fascinating...





I guess that we can thus freely ignore what the Courts have said because you believe it to be dicta? At least you should do the work to show that it is indeed dicta. But it may be simpler to just resort to silly games...

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