"Citizen ... at the time of the Adoption"

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"Citizen ... at the time of the Adoption"


Post by verbalobe »

I continue to be fascinated by the so-called 'grandfathering' clause of the Article II, Section 1, eligibility clause. I wrote about it here:

http://www.thefogbow.com/forum/viewtopi ... 69#p229369

I believe it provides the best evidence (for those who care to dabble in "what the Framers intended," as opposed to reading law --> ) for Natural = Native. But it requires a bit of thinking.

I feel like a couple points could be made here that would read like a slam dunk. But I'm not sure how to do it. Here are some of the questions/ideas that come to mind, some of them from my earlier post:

[*:2dsz7sae]If "Natural born Citizen" is a 'special' 'extra-super-pure' kind of citizen, different from 'just a regular native born citizen', why were the first nine presidents permitted to be 'just' citizens? That was the first 53 years of the republic, arguably when it was most vulnerable from foreign influence and monarchists.

[*:2dsz7sae]What is specially different about you, if you are born after 1789, that your parents' allegiance suddenly needs to be taken into account? Why didn't Van Buren's parents' allegiance matter, just because he was already a citizen ("just" a citizen) in 1789 (a seven-years-old citizen, with plenty of time to become corrupted), while Tyler's parents' allegiance does matter, just because he was born in 1790?

[*:2dsz7sae]Vattelist birthers claim that NBC means 2 things: (a) native born, (b) something to do with parents. Furthermore, (b) is vitally, critically important (according to birthers). Yet the Framers, faced with a situation where (a) is literally impossible (at least until 1824, 35 years from 1789), just carelessly write a grandfathering clause that forgets (b) entirely! Why?

[*:2dsz7sae]The eligibility clause doesn't mention the vice-presidency. Yet the first person to become President who wasn't 'grandfathered' (Tyler) had actually been elected as Vice President (to Harrison). Where is the evidence that the young nation in 1840 "vetted" Tyler's eligibility, as the first candidate in history whose parents' citizenship would be relevant? Or if not in 1840, in 1841 when Harrison's death sparked a Constitutional crisis and became "His Accidency"?

[*:2dsz7sae]Perhaps the most straightforward argument: How did one "become" a citizen "at the time of the Adoption"? I don't have the reference, but it was by already being a "citizen" of a state, right? So whatever citizenship in a state could mean, it was good enough for the Framers to make a President, so long as that state citizenship was acquired before 1789. Did any of the states incorporate a jus sanguinis element in state citizenship?The general point is: Vattelists want us to believe that the Framers didn't care at all about jus sanguinis for some indeterminate period (until all those who had been citizens at the adoption had died out or were too old to run for President), and that a brand new test of citizenship that had never been defined or discussed would suddenly be required of candidates 35 or more years in the future.

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"Citizen ... at the time of the Adoption"


Post by poutine »

Yes, this is one compelling point among many why the birther theory of constitutional law is as ridiculously wrong as one might expect, if a court were to ever even bother interpreting the clause. Remember that it never will, because this is probably an issue subject to the political question doctrine. It is the people who get to decide what the clause really means, in other words. The people certainly spoke loud and clear with respect to Barack Obama.

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"Citizen ... at the time of the Adoption"


Post by ballantine »

Interesting argument. My view has always been that the framers considered themselves to be "natural born citizens" because of their birth in their respective states. The states had all essentially adopted the common law and actually continued to use the terms "subject" and "natural born subject" more often than "citizen." Madison's view was that one owed allegiance to the community of his birth. i.e., his state. He said the allegiance to England was secondary and was transferred to the United States by the Declaration. Hence, William Smith was a US citizen solely by virtue of his birth in South Carolina before the revolution. This conforms to Tucker's view on the subject:"A very respectable political writer makes the following pertinent remarks upon this subject. "Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it." There was always a debates over the primacy of state versus US citizenship that was still going on in Dred Scott and the 14th Amendment Congress. For example, Justice Curtis' dissent:"Among the powers unquestionably possessed by the several States was that of determining what persons should and what persons should not be citizens….It embraced…what native-born persons should be citizens of the United States."In the Constitutional Convention, the framers clearly referred to delegates born in the states as "natives" as they distinguished between delegates who were natives and those who were foreign born when discussing eligibility and only discussed limiting eligibility to the foreign born. Of course, "native" and "natural born" were synonyms under English law. James Wilson was quite offended by the suggestion that he would be ineligible to hold office due to his foreign birth. From McHenry's Notes:"Mr. Wilson expressed himself feelingly on the same side. It might happen, he said, that he who had been thought worthy of being trusted with the framing of the Constitution, might be excluded from it. He had not been born in this country. He considered such exclusing as one of the most galling chains which the human mind could experience. It was wrong to deprive the government of the talents virtue and abilities of such foreigners as might chuse to remove to this country."From Madison's Notes:"Mr. WILSON said, he rose with feelings which were perhaps peculiar ; mentioning the circumstance of his not being a native, and the possibility, if the ideas of some gentlemen should be pursued, of his being incapacitated from holding a place under the very Constitution which he had shared in the trust of making. He remarked the illiberal complexion which the motion would give to the system, and the effect which a good system would have in inviting meritorious foreigners among us, and the discouragement and mortification they must feel from the degrading discrimination now proposed. He had himself experienced this mortification. On his removal into Maryland, he found himself, from defect of residence, under certain legal incapacities which never ceased to produce chagrin, though he assuredly did not desire, and would not have accepted, the offices to which they related. To be appointed to a place may be matter of indifference. To be incapable of being appointed is a circumstance grating and mortifying."After one of Wilson's statements, it was suggested that current citizens be exempted from the restrictions on the foreign born they were discussing. That is pretty much all we know, but is why most early scholars thought the provision was an exception for foreign-born framers like Wilson. We do know that not all framers were concerned about foreign attachments. For example, Madison said:"Mr. MADISON was not averse to some restrictions on this subject, but could never agree to the proposed amendment. He thought any restriction, however, in the Constitution, unnecessary and improper: unnecessary, because the national legislature is to have the right of regulating naturalization, and can by virtue thereof fix different periods of residence, as conditions of enjoying different privileges of citizenship; improper, because it will give a tincture of illiberality to the Constitution ; because it will put it out of the power of the national legislature, even by special acts of naturalization, to confer the full rank of citizens on meritorious strangers; and because it will discourage the most desirable class of people from emigrating to the United States. Should the proposed Constitution have the intended effect of giving stability and reputation to our government, great numbers of respectable Europeans, men who love liberty, and wish to partake its blessings, will be ready to transfer their fortunes hither. All such would feel the mortification of being marked with suspicious incapacitations, though they should not covet the public honors. He was not apprehensive that any dangerous number of strangers would be appointed by the state legislatures, if they were left at liberty to do so: nor that foreign powers would make use of strangers, as instruments for their purposes. Their bribes would be expended on men whose circumstances would rather stifle than excite jealousy and watchfulness in the public."All in all, I think their is little evidence that the framers were all that concerned about foreign attachments and the willingness to have a grandfather clause for persons born outside of the states or colonies supports such notion.

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