“At Common-Law… It Was Never Doubted:”
Minor v Happersett and the American Common Law

Here We Document Legal Evidence that American Common Law Defined “Natural Born Citizen” as a Person Born on US Soil of Two Citizen Parents.

We Present the Evidence that Chief Justice Morrison Waite Was Relying on American Common Law

We Present the Evidence that Chief Justice Morrison Waite Was Relying on American Common Law

 

“At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners.”

– United States Supreme Court, Minor v Happersett (1875)

A Different, Perhaps More Charitable Tack

This blog has previously destroyed many of the most prominent “birther” claims that Barack Obama, Bobby Jindal, and Marco Rubio are ineligible to be President because they do not have two citizen parents.

  • The critical claim that Chinese-American Wong Kim Ark, born on US soil of two Chinese parents, was found by the US Supreme Court to be only a “citizen” and not a natural born citizen has been destroyed.
  • The flagship claim that the US Supreme Court in Minor v Happersett defined “natural born citizen” as “a person born on US soil of two citizen parents” has been ground into the dust over the course of five articles.
  • The equally important claim that the Founding Fathers and Framers of the Constitution relied on Vattel, rather than on the English common law, for the concept of “natural born citizen” has been pulverizedhere too.
  • The claim that the citizenship law Thomas Jefferson wrote for the Commonwealth of Virginia in 1779 only gave citizenship to children born on Virigina soil if their parents were already citizens has been thoroughly debunked.
  • And the claim that “Congress in the Naturalization Acts of 1790, 1795, 1802, and 1855 told us that a child born in the U.S. to alien parents was not even a ‘citizen’” has been shown to be absolutely false.

But let’s take a different, perhaps more charitable tack. Today, instead of looking for evidence to debunk the two-citizen-parent claim, I’d like to look for evidence to support it.

The birthers, and particularly Mario Apuzzo, have really been struggling lately in the face of the devastating facts that illustrate how false their major claims are. It seems only fair that we should try to help them out for a change.

I am even willing to work together with birther attorney Mario Apuzzo on this project.

Mario Apuzzo Says that When the Supreme Court in 1875 Said, “At Common-Law,” They Meant the American Common Law.

Mario Apuzzo has been clear in his claim that when the Supreme Court gave us the quote above, they were referring to American common law, and they EXCLUDED the English common law.

This is really important, because under the English common law — which Alexander Hamilton and other Supreme Courts besides Minor have told us we ought to look to when interpreting the terminology of the Constitution — it was very clear that ANY child born on the soil of the country, whether his parents were citizens or not, was a “natural born subject.” And we know for a fact that the terms “natural born subject” and “natural born citizen” were used interchangeably in the early days of the United States.

Here’s what Mr. Apuzzo has to say:

“Note that the Constitution in Article I, Section 8, Clause 4 gave the power to naturalize exclusively to Congress. This power did not include the power to make ‘natural born Citizens’ who were defined under American common law (the law of nations) as the children born in the country to ‘citizen’ parents.”

Let’s Help Mr. Apuzzo and the Birthers by Documenting the American Common Law that Defined “Natural Born Citizens” as “the Children Born in the Country to ‘Citizen’ Parents.”

Common law, by its definition, is generally law that has been established as a result of judicial decision.

So common law generally consists of:

  • the legal precedents established by judges,
  • and their quotes, in the rulings of court cases, as to what the law is.

Common law, generally speaking, doesn’t consist of theories written in books by persons who are not members of a nation’s legal system — unless, of course, those theories and quotes have been taken up by actual judges in the courts of the nation, and been made a part of the law through judicial ruling.

Since the American common law established that “natural born citizen” only meant a child born on US soil to two citizen parents, we therefore ought to look for court cases in America, prior to 1787 when the Constitution was written, in which this legal principle was established.

And we ought to try and list quotes from American judges, prior to 1787, confirming this legal precedent.

Since (as Mario Apuzzo quite rightly notes) “natural born citizen” is a term of art, and since he is very clear on the point that “natural born citizen” must have a very different meaning from “natural born subject,” (which, as we know, always included the children of non-citizen parents) then we should look for the court cases and judicial statements that use that exact term.

And of course, since we need a precedent that applies to the entire United States, we ought to look for court cases and rulings made by United States federal courts (including the Supreme Court) between 1776 and 1787, when the Constitution was written.

Oh… wait. The US Supreme Court and federal court system were established by the Constitution, in 1787. And under the previous Articles of Confederation (1776 to 1787) there was no federal court system.

So we’re likely to come up a bit skimpy on that count.

Okay then… let’s include every mention of the term of art “natural born citizen” from all State and Colonial courts, dating from the establishment of the first Colony at Jamestown in 1607, right up until the Constitutional Convention adjourned in September of 1787.

So let’s list those court cases and quotes below that establish this American common law definition!

Mario, can you help us with this? You’re the expert!

Our Listing of American Court Decisions Prior to 1787, that Establish the American Common Law Definition of “Natural Born Citizen:”

1)

 

2)

 

3)

 

4)

 

The Quotes from American Colonial, State and Federal Judges, Prior to 1787, that Make Clear the American Common Law Definition that Being a “Natural Born Citizen” Requires Two Citizen Parents:

1)

 

2)

 

3)

 

4)

 

Contributions from other researchers are welcome as well. Thanks for supporting the Constitution!


Update: I can’t seem to get any help yet from Mario Apuzzo on this project… although he has been spotted over at his blog crying that John Woodman “does not even know what American ‘common law’ is or where it came from in the early years of the Republic.”

Mario claims that the relevant “American common law” comes from elsewhere than court cases and judicial quotes. We’ll look at that claim later. First let’s establish what court cases and judicial quotes might exist.

In fact, let’s be generous to Mario here and say we’ll also be happy to list any statutory laws that were passed by any legislative bodies in America prior to the establishment of the Constitution, that specifically and clearly defined the term of art, the exact phrase “natural born citizen” as being “someone born on US soil (or in whichever Colony or State) of two parents who were already citizens,” and that children born of non-citizen parents are thereby excluded from “natural born citizen” status.

If we could even find one example of a law defining “natural born citizen” in that way, then we at least we could suppose there was some obvious basis for Mr. Apuzzo’s claims: a) that American law ever defined “natural born citizen” in that way, and b) that the Supreme Court in Minor v Happersett was referring to some type of such American law in their ruling.

Update 2: Mr. Apuzzo tacitly acknowledges, by completely failing to provide even one single example of any American judicial decision, any statement at all from any American judge, or any American law at all, from any State or Colony prior to the adoption of the Constitution, defining “natural born citizen” as requiring two citizen parents, that he HAS no such examples.

Mr. Apuzzo instead insists that the “American common law” of which he speaks is the “law of nations” incorporated into American law.

That, then, is how we (according to Mr. Apuzzo) got the definition of “natural born citizen” into our Constitution:

We supposedly adopted (apparently wholesale) the “law of nations” into our federal law, and the “law of nations” supposedly defines “natural born citizen” as “someone born in a country of two citizen parents.”

And any such definition of “natural born citizen” supposedly supersedes the fact that we changed “subject” to “citizen” and that for hundreds of years, “natural born subject” had always included the children born locally of non-citizen parents.

Surprisingly, the claim is not just dismissible out of hand. Our Founding Fathers did indeed generally believe that we should comply with certain principles of relationships between nations — the “law of nations,” and they were in fact concerned that we do so.

In a future article I intend to address the “law of nations.” For now, it’s enough to note: Mr. Apuzzo has produced, and can produce, no evidence at all to indicate that any past judicial precedent in America, or any American law, established the definition of “natural born citizen” that he claims.

Update 3: I have made some corrections to this article in accordance with Apuzzo’s having pointed out that it doesn’t really address his actual claim. Ironically, correcting an article is something I’ve never seen Mr. Apuzzo do. But I am not here to imitate him (far from it). I am here to write the truth, whichever directions the truth leads.

Apuzzo still has produced absolutely no evidence whatsoever that any American judge or legislature prior to the writing of the Constitution ever defined the term of art “natural born citizen” as “someone born on US soil of two US citizen parents.” We may therefore assume he has none.

We must hunt elsewhere, then for this “American common law.”

Update 4: Two articles looking at whether the definition of “natural born citizen” could possibly have come from American common law originating in the “Law of Nations” have been posted. This series concludes with a summary of the legal evidence.

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111 Responses to “At Common-Law… It Was Never Doubted:”
Minor v Happersett and the American Common Law

  1. Woodman you traitor! Why didn’t you post this a few days ago before I stuck my neck out and made the offer to $1000 bet with Mario? #3 of the first list and #2 on the second list are just devastating. However, being an honorable guy I will stand behind my wager.

  2. John Woodman,

    You really blew it on this article. But then that is nothing new for you. It is clear from the article that you do not understand what American common law is and from where it came in the early years of the Republic. You are under the mistaken impression that it only came from courts and judge’s decisions. You need to go back to the drawing board and learn from where our early American common law came. You are so ignorant on this subject that you do not know that the law of nations was incorporated into American (federal) common law and that it became part of Article III “Laws of the United States.”

    Maybe you can get one of those unicorns to help you out a bit given that you are really being demolished everywhere you appear.

    • Jim says:

      Mario, could you point me to the “Laws of the United States” that you keep referring to? Thanks.

      • JRC says:

        Nothing of substance from Mario, as usual.

        • John Woodman says:

          Surprisingly, I’m actually prepared to say that Mario isn’t 100% cracked here.

          Unlike in so many other instances (virtually every instance that I can recall) he has a point that isn’t total horse puckey.

          Before Mario gets too excited and somehow hurts himself, though, let me hasten to add that I don’t think for one moment that he has a winnable argument on this point.

          But instead of it being a matter of Godzilla versus Bambi, it may be more like Godzilla versus… oh… maybe Elsie, the Borden mascot. And I might end up having to modify the article above a bit.

          But never let it be said I didn’t give the devil his due!

          I’ll try to comment some more later.

          • Suranis says:

            Yes he has a point about American common law bieng slightly different to English law. Unfortunatly, inless Mario can dig up a case or law in the US from BEFORE the drafting of the constitution specificly stating “Oh yes, we are ditching this Calvis case/Jus Soli definition and hopping over the nice definition of this Vattel chap” he is still out of luck, as the English law holds till specificly overridden by a new law.

            Of course thats the rule in the rest of the Ex British Empire. Mario will either argue American exceptionalism, or compleatly ignore that point as he has a zillion others.

            • Suranis,

              Is it stinken statutes that you are looking for? Try the Naturalization Acts of 1790, 1795, 1802, 1804, and 1855. Those acts are based on natural law and the law of nations. Those Congressional Acts abrogated the laws of the “Ex British Empire.” And with those statutes, jus soli and feudalism went out the window.

            • Suranis,

              Is it stinken statutes that you are looking for? Try the Naturalization Acts of 1790, 1795, 1802, 1804, and 1855, and the Expatriation Act of 1868. Those acts are based on natural law and the law of nations. Those Congressional Acts abrogated the laws of the “Ex British Empire.” And with those statutes, jus soli and feudalism went out the window.

            • ballantine says:

              Well, we can’t say you don’t have any authority any more. You have found an anonymous letter whose position was rejected by Madison’s state department. LOL. You really can’t make this stuff up. Keep looking and you might find someone who was willing to sign their name to such silly position.

              And, here is Congress in 1855 acknowledging we followed the English common law as they amended the naturalization laws after reading Binney’s paper that such common law wasn’t jus sanguinis. How does it feel to never get anything right?

              “By the common law, the better opinion always was, although there was a few dicta to the contrary, that children born out of the allegiance of the crown, and under the allegiance of another dominion, were aliens to the former and were subjects to the latter, or not, according to the municipal regulations of the country in which the birth might have happened to take place….I have had sent to me a pamphlet written by one of the most eminent lawywers in the United States, whose fame is known from the northern extreme to the southern boundries of our country, I refer to Horace Binney…He has published an elaborate pamphlet intending to draw attention to the subject to which I have now invited the attention of this house.” Rep. Cutting, Cong. Globe, 33rd. Cong., 1st Sess. pg. 170 (1854)

            • Suranis says:

              “Try the Naturalization Acts of 1790, 1795, 1802, 1804, and 1855.”

              Gosh, did you spot the “BEFORE the drafting of the Constitution” part? I even put it in capital letters. Last I checked the Constitution was adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, and went into effect on March 4, 1789. I know I’m just a simple Irishman, but 1790 looks to me like it was AFTER the drafting of the constitution.

              Thats the fine eye for legal detail we have come to expect.

            • John Woodman says:

              Ah, but Unicorn years are counted backwards.

      • JRC says:

        Apparently Mario believes that American Common Law appeared as a Unicorn to the Founders.

      • Jim,

        Article III, Section 2.

    • JRC says:

      Mario, so where are the cases that overturn more than 100 years of law that the Founders were familiar with? If there weren’t cases, where are the debates, the quotes, or anything else from the Founders that shows that they completely abandoned English Common Law instead of just Monarchy Rule and legislation without representation?

      • Thomas Brown says:

        Mario will never provide any actual concrete proof of any of his childish, nonsensical ideas. It reminds me of a Zen story:

        ‘Upon seeing Ma-tsu in zazen the Abbot of Prajna Temple, Huai-jang, asked Ma-tsu, “In doing zazen what do you hope to accomplish?” Ma-tsu quickly replied, “To attain Buddhahood.” Huai-jang then bent down and took up a piece of tile and began to polish it. When asked by Ma-tsu what he was doing, Huai-jang responded by saying, “I am trying to polish this tile into a mirror.”’

        Mario is trying to magically turn what he wishes was historically true into reality. This sort of superstitious behavior is common among those with unusually weak minds.

        • Thomas Brown,

          You are worthless here.

          • Thomas Brown says:

            Awww…. wassamatta, Mario; skin getting thin? You don’t like being ridiculed, stop being ridiculous.

            • Rambo Ike says:

              Psst Brown.

              Your keyboard warrior act is worthless in this debate.

              Resolve yourself to the fact that ‘class is in session’ and you’re getting an education by teacher Mario.

            • Thomas Brown says:

              That might be the case if I weren’t… you know… correct.

              You know what we call a side that loses hundreds of court cases, and with whom no competent legal authority ever agrees?

              Losers.

              Losers like you, Mario, and every other Birfoon. Your ideas are ludicrous, your credibilty bankrupt, and your loyalty to America foresaken. You owe our nation an apology which it will never receive.

              It is people like Woodman who are the real defenders of American principles, and you hold him in contempt. Believe me, that says more about you than it does him.

    • ballantine says:

      One can debate the extent that the american common law was different than the English all day. The only relevant point is whether anyone thought our common law of citizenship was different and Mario knows that there is no early authority that says that. He also knows I can cite authority all day saying our common law of citizenship was the same as England. All he can do is say it doesn’t count.

      “that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term “citizenship.” Garder v. Ward, 2 Mass. 244 (1805).

      “The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born. Kilham v. Ward (1806), 2 Mass. 236, 265.

      “Our statutes recognize alienage and its effects, but have not defined it. We must therefore look to the common law for its definition. By this law, to make a man an alien, he must be born without the allegiance of the commonwealth ; although persons may be naturalized or expatriated by statute, or have the privileges of subjects conferred or secured by a national compact.” “This claim of the commonwealth to the allegiance of all persons born within its territories, may subject some persons who, adhering to their former sovereign and residing within his dominions, are recognized by him as his subjects, to great inconvenience, especially in time of war, when two opposing sovereigns may claim their allegiance. But the inconvenience cannot alter the law of the land. If they return to the country of their birth, they will be protected as subjects.” Ainslie v. Martin, 9 Mass. 454, 456, 457 (1813).

      “And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . .” James Kent, COMMENTARIES ON AMERICAN LAW, pg. 258 (1836)

      “The common law principle of allegiance was the law of all the States at the time of the Revolution and at the adoption of the Constitution, and, by that principle, the citizens of the United States are, with the exceptions before mentioned, such only as are either born or made so, born within the limits and under the jurisdiction of the United States or naturalized by the authority of law, either in one of the States before the Constitution or, since that time, by virtue of an act of the Congress of the United States. The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts.” Horace Binney, American Law Register, 2 Amer.Law Reg.193, 203, 204, 206 (February 1854)

      “The Constitution contains no definition of the character of a Citizen ; but the term is used in plain reference to the Common Law, which is regarded not only as the means or instrument of exercising the jurisdiction conferred by the Constitution, but in many instances must be resorted to as the interpreter of its meaning. At the time the Constitution was adopted, the Citizens of each State, collectively, constituted the Citizens of the United States ; and were either Native Citizens, or those born within the United States, or naturalized Citizens, or persons born elsewhere, but who, upon assuming the allegiance, had become entitled to the privileges, of native Citizens.” Wiiliam Duer, A course of lectures on the constitutional jurisprudence of the United States, pg. 231, (1845);

      “By the common law of England, which is in force in this country, and which may be assumed as also the law of all the European states, persons within the jurisdiction of the government, or limits of the territory, are either natives, or aliens. Natives are those born within the national jurisdiction; aliens are born without that jurisdiction. The exception to this almost universal rule, are the foreign-born children of ambassadors, who are assumed to carry with them the jurisdiction of the nation which they represent. As a general principle of the English and American law, all native-born, free persons, of whatever age, sex, and parentage, are citizens.” John Norton Pomeroy, Introduction to Municipal Law, pg. 419 (1865)

      “From the close of the revolutionary war to the time of the adoption of the constitution of the United States, all persons born in this country became citizens of the respective States within whose jurisdiction they were born, by the rule of the common law, unless where they were prevented from becoming citizens by the constitution or statutes of the place of their birth….The word citizen expresses precisely the same relation to the State which subject does to the king. Indeed for a considerable period after the revolution, the word subject was used as synonymous with citizen. Thus in the declaration of rights in the constitution of Massachusetts, the word subject is several times introduced, where we should now use citizen. So in Mass. St. 1784, c. 72, s. 10, a punishment is enacted for kidnapping “any subject of this Commonwealth, or other person lawfully residing and inhabiting therein.” In this passage the word subject can have no other meaning than that ot citizen. Therefore every person born within the United States, its territories, or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the constitution, and entitled to all the rights and privileges appertaining to that capacity.” American Jurust and Law Magizene, January, 1834

      “The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not. ” Lynch vs. Clarke, pg. 250 (NY 1844)

      “All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. There are two exceptions, and only two, to the universality of its application.” Justice Swayne, United States v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866)

      “By the terms of the Constitution he must have been a citizen of the United States for nine years before he could take a seat here, and seven years before he could take a seat in the other House; and, in order to be President of the United States, a person must be a native-born citizen. It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born….”.)” Sen. Trumbull April 11, 1871, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)

      One could probably cite a hundred of such authorities if they wanted. I know, I know. Everyone is wrong and Mario and his anonymous writer are right.

      • John Woodman says:

        And that’s a good summary of the situation.

        Mario claims that our Founding Fathers threw the baby — the basic English common law rule regarding who was a “natural born” member of a society — out with the bath water — the proposition that one born a member was absolutely stuck with being a member for life, whether he wanted to be or not.

        The two things are entirely separable, and they were separated by the Founding Fathers, the Framers, and those who came after them in the history of our nation.

        Mario has pretty much no authority to back up his position — except the authority of his own bald assertion, the opinion of his 9-year-old son, and that of a writer of a letter to a newspaper in 1811, who states that an honest and informed person might well disagree with him, and who wasn’t willing even to publicly provide his name.

        Ballantine can easily produce pages and pages and quotes and quotes from authorities spanning the entire history of the United States from its Founding until now, that clearly back his position.

        Gosh. I wonder who’s right.

  3. JRC,

    Madison wrote to George Washington on October 18, 1787, stating:

    “What can he mean by saying that the Common law is not secured by the new constitution, though it has been adopted by the State Constitutions. The common law is nothing more than the unwritten law, and is left by all the constitutions equally liable to legislative alterations. I am not sure that any notice is particularly taken of it in the Constitutions of the States. If there is, nothing more is provided than a general declaration that it shall continue along with other branches of law to be in force till legally changed. The Constitution of Virga. drawn up by Col Mason himself, is absolutely silent on the subject. An ordinance passed during the same Session, declared the Common law as heretofore & all Statutes of prior date to the 4 of James I. to be still the law of the land, merely to obviate pretexts that the separation from G. Britain threw us into a State of nature, and abolished all civil rights and Obligations. Since the Revolution every State has made great inroads & with great propriety in many instances on this monarchical code. The “revisal of the laws” by a Committee of wch. Col. Mason was a member, though not an acting one, abounds with such innovations. The abolition of the right of primogeniture, which I am sure Col. Mason does not disapprove, falls under this head. What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution. This objection surely was not brought forward in the Convention, or it wd. have been placed in such a light that a repetition of it out of doors would scarcely have been hazarded. Were it allowed the weight which Col. M. may suppose it deserves, it would remain to be decided whether it be candid to arraign the Convention for omissions which were never suggested to them — or prudent to vindicate the dissent by reasons which either were not previously thought of, or must have been wilfully concealed. But I am running into a comment as prolix, as it is out of place.”

    2 Documentary History of the Constitution, IV, 334-336. 3 Records of the Federal Convention of 1787, p. 129 (M. Farrand ed. 1911). http://www.constitution.org/jm/17871018_wash.htm.

    Surely, Madison said it all regarding whether the Founders and Framers adopted the English common law or its “antirepublican doctrines” into the national republic. Jus soli and subjecthood to a King for life was considered monarchial, feudal, and “antirepublican.” On the other hand, citizenship through consent of the parents, with the right of children to make their own decision upon reaching the age of majority, was republican.

    • JRC says:

      http://press-pubs.uchicago.edu/founders/documents/a1_2_2s6.html

      Just going to copy part of this, but the link to the whole is above. This is from James Madison as well.

      “It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other. Mr. Smith founds his claim upon his birthright; his ancestors were among the first settlers of that colony.”

      “I think there is a distinction which will invalidate his doctrine in this particular, a distinction between that primary allegiance which we owe to that particular society of which we are members, and the secondary allegiance we owe to the sovereign established by that society. This distinction will be illustrated by the doctrine established by the laws of Great Britain, which were the laws of this country before the revolution. The sovereign cannot make a citizen by any act of his own; he can confer denizenship, but this does not make a man either a citizen or subject. In order to make a citizen or subject, it is established, that allegiance shall first be due to the whole nation”

      “I conceive that every person who owed this primary allegiance to the particular community in which he was born retained his right of birth, as the member of a new community; that he was consequently absolved from the secondary allegiance he had owed to the British sovereign:”

      • JRC says:

        I also like how in the post I put up there by Madison that he uses Subject or Citizen as to equate them in their relationship.

  4. JRC says:

    A question for you Mario….

    At the beginning of the letter it says this….

    What can he mean by saying that the Common law is not secured by the new constitution, though it has been adopted by the State Constitutions. The common law is nothing more than the unwritten law, and is left by all the constitutions equally liable to legislative alterations. I am not sure that any notice is particularly taken of it in the Constitutions of the States. If there is, nothing more is provided than a general declaration that it shall continue along with other branches of law to be in force till legally changed.

    Who is “he”?

    I don’t see anything that says we got rid of common law, but instead that it shall continue until we change in by law, kind of like those Naturalization Acts.

    • JRC says:

      My bad I was going to bold a part of my last post, but decided to change it and left it open. Sorry to all.

      • Yes, and edit or preview function would be nice for us lousy oorfpreaders. :lol:

        • John Woodman says:

          BY POPULAR DEAMND!

          I’ve installed a plugin that should allow all users to edit their typogarphical errors.

          Let me know if you experience any problems. ;-)

          • Slartibartfast says:

            How about a check box to subscribe to a thread by email? With only 5 comments on your “recent comments” list, this is a tough site to stay current on and I would hate to miss any of Mario’s stunning dishonesty or his case studies in logical fallacies (plus it would encourage some of us to de-lurk and post occasionally…)

            [Edited to add this note ;-) ]

            [Edited again to add that I like the "ticking clock"... ]

            • John Woodman says:

              Now at ObamaBirthBook.com!

              Are you tired of missing episodes of Mario’s stunning dishonesty?

              Can’t find that case study in logical fallacy that everyone’s been talking about?

              Now you too can Subscribe to Comments! Just check the box at the bottom of the page!

            • Jim says:

              Can we have it automatically sent to Mario’s blog too? hehehe

          • Thanks John! This is a nice upgrade. I especially like the larger editing window for previews.

            Edit:
            For folks that use Firefox there is a nice extension called BBCode Extra that somewhat automates adding italics and bold text.

    • gorefan says:

      He is Col. Mason. Mason refused to sign the Constitution and actively campaigned against its ratification.

      http://www.obamabirthbook.com/http:/www.obamabirthbook.com/2012/04/vattel-and-natural-born-citizen/#comment-1695

      • JRC says:

        Thanks gorefan. Much appreciated.

      • JRC says:

        I wanted to know so I could see what the reason for the letter, aka context. That seems to be a major problem with Birthers. They find something and make a big deal until you understand the context of what is being discussed which John has shown time and time again refutes their arguments on almost all occasions.

  5. Ballantine said: “One can debate the extent that the american common law was different than the English all day. The only relevant point is whether anyone thought our common law of citizenship was different and Mario knows that there is no early authority that says that. He also knows I can cite authority all day saying our common law of citizenship was the same as England. All he can do is say it doesn’t count.” Then he cited various state law cases (except for one lower federal court case) and commentators as “authorities” regarding what the English common law said about “subjecthood” and its application in any particular state or the United States. Then he concluded: “One could probably cite a hundred of such authorities if they wanted. I know, I know. Everyone is wrong and Mario and his anonymous writer are right.”

    Too bad for ballantine that he fails to understand that the states retained the English common law to a limited degree until they abrogated it by statute, but that the federal government, except later to a limited extent through the Bill of Rights which have nothing to do with citizenship, did not adopt it. Too bad for ballantine that he fails to understand that citizenship in the United States is a national character to be determined by national law and not a state character to be decided by the outdated and outmoded English common law. Too bad for ballantine that he does not understand that the Naturalization Acts of 1790, 1795, 1802, 1804, 1855, and the Expatriation Act of 1868 abrogated the English common law. Too bad for ballantine that there is a case from the United States Supreme Court called Minor v. Happersett, 88 U.S. 162, 167-68 (1875), which in 1875 explained that:

    “The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.”

    Id., at 167-68.

    In Minor, our Supreme Court told us what it thought about what American federal “common-law” (not English common law) said about the meaning of a “natural-born citizen.” And regarding ballantine’s local and other “authorities” on the English common law, the Court also covered them. The Court while recognizing such “authorities,” which the Court did not recognize as binding or precedential to any degree, said that “there have been doubts” whether their position that a child born in the United States to alien parents was a “citizen” (nota bene it did not say “natural-born citizen”). And that U.S. v. Wong Kim Ark in 1898 made a policy decision based in part on the English common law that such children, born in the United States to domiciled alien parents, would be allowed admission to American society as “citizens” did not change the national American “common-law” definition of an Article II “natural born Citizen” which since the Founding has been a child born in the United States to parents who are both either “natural born Citizens” or “citizens of the United States.”

    • ballantine says:

      Mario, of course, is the one claiming we the American common law of citizenship was different from England. Of course, he cannot cite one authority to support it. No matter how many authorities I cite, they don’t count. It doesn’t matter if the persons were the leading scholars of the early republic, that many were talking about US citizenship or that most of the quotes I cited were adopted by a majority of the Supreme Court. It simply doesn’t matter as all that counts is the opinion of Mario and his anonymous writer.

      Mario also has made clear he cannot find a single legal authority to support his interpretation of the naturalization acts. Oh, that’s right, he cites someone who lost their case. LOL. It has been pointed out the Supreme Court has said he is wrong on multiple occasions, but again, such doesn’t matter. When we cite a state law case, it doesn’t matter because it is a state law case. When we cite the Supreme Court it doesn’t matter because Mario says so. Notice he ignores the plain language from Congress in 1854 where they were still looking to the English common law to determine who they needed to naturalize. Duh.

      All Mario has left is to keep pretending that Minor actually addressed the status of native children of aliens when it clearly did not. It did not say such persons where not citizens or that the doubts were about a type of citizenship other than natural born citizenship. To state otherwise is simply being dishonest. Of course, Mario has not made any rebuttal to all the clear, unambiguous statements quoted from Wong Kim Ark that say that natural born subject and citizen mean the same thing, that we interpret the Constitution by reference to the English common law, that “subject” and “citizen” mean the same thing and that our common law of citizenship is the same as England. Again, these do not count. It is sad that Mario doesn’t seem to realize when he is embarrassing himself.

  6. John Woodman says:

    Too bad for ballantine that he fails to understand that the states retained the English common law to a limited degree until they abrogated it by statute, but that the federal government, except later to a limited extent through the Bill of Rights which have nothing to do with citizenship, did not adopt it.

    Well… Too bad for you that you deny the fact that the Constitution was framed in the terminology of the English common law, and that both Alexander Hamilton and the United States Supreme Court have said that when we want to know what something in the Constitution means, we ought to look to the legal language of England, which we inherited, in order to understand it.

    Too bad for ballantine that he fails to understand that citizenship in the United States is a national character to be determined by national law and not a state character to be decided by the outdated and outmoded English common law.

    Too bad for you that you claim that citizenship was defined by “American common law” according to your definition, when there is absolutely no evidence to support that your definition of citizenship is what the Framers intended.

    Too bad for ballantine that he does not understand that the Naturalization Acts of 1790, 1795, 1802, 1804, 1855, and the Expatriation Act of 1868 abrogated the English common law.

    Too bad for you that an Act cannot abrogate a matter on which it was completely and utterly silent.

    Too bad for ballantine that there is a case from the United States Supreme Court called Minor v. Happersett…

    Too bad for you that your
    utterly bogus
    word-twisting
    interpretation
    of Minor v Happersett
    has been and will continue to be rejected by the courts.

    And, too bad for you that there’s a case from the United States Supreme Court called US v Wong Kim Ark.

  7. Suranis says:

    Well, say what you will about Mario, he does stimulate debate.

    • John Woodman says:

      I’ll go further than that.

      I have learned a great deal as a result of Mr. Apuzzo’s writings, and those of his fellow-travelers.

      Granted, most of it is stuff I would never have really needed to know except for the fact that these folks are spinning tales that aren’t exactly true. But still, it’s been an enriching experience.

      I have a new knowledge of our country’s history and of our Founding Fathers. I can tell you what Alexander Hamilton was like as a person. Who he hung out with. What he fought for. Who he fought against. The failure of his character and the strength of conviction and character that contributed to his death at an early age.

      I know a reasonable amount of the story of our Constitutional Convention. I can picture a bit of what George Washington was like as a person. Businesslike, dignified, not a guy you approached on the really personal level or just chummed around with — even if you were one of his closest associates.

      I understand what the Civil Rights debate in the wake of the Civil War was all about, who the heroes of that Congressional struggle were, and who the villains. I’ve listened to the beautiful speeches of men who knew that they were sweeping away, over opposition, an old social order in which some Americans were regarded and treated as mere chattel — and they knew that it was a watershed moment in American history, from which we would never turn back.

      Of course I would much prefer that folks like Mario weren’t distorting truth and our history and laws. But looking on the brighter side, examining and responding to his claims has in fact led to some experiences that certainly have had some positive aspects to them.

  8. I have a question for Mario (whom will not take my bet nor debate on Reality Check Radio). My question is this: Let’s put aside all the discussion and blog posts. You had almost three hours to make you case before a judge in New Jersey. Judge Masin has been an administrative law judge for many years and has heard many cases including election law cases. He listened to your case and decided against you despite the other side offering only a very basic defense. Judge Masin looked at Vattel, he looked at Minor, and he looked at Wong Kim Ark. Then Judge Masin said: “the petitioners’ legal position on this issue, however well-intentioned, has no merit in law. ”

    Could you tell us why one should believe you instead of Judge Masin? What cases on Constitutional law have you argued? How many have you won? What cases on election law have you argued? How many have you won? Have you written any peer-reviewed articles on Constitutional law? Where have they been published? Just what is your legal background that would qualify you to opine on anything in the Constitution? What cases have you argued in any field? What is your background as an attorney? Are we to believe you anyone other than a disgruntled blogger?

    • Jim says:

      Come on now…he’s trying to branch out.

      http://lawyers.justia.com/lawyer/mario-apuzzo-1050467

      Practice Areas
      Car Accidents
      Criminal Law
      DUI / DWI
      Injury Law
      Municipal Law

      • John Woodman says:

        I don’t fault him for trying to branch out.

        I do fault him for misrepresenting the truth, our Founding Fathers, our Constitution, our history, and our laws.

      • I think the question I asked is a fair question. After all it is Mr. Apuzzo who is staking out a position in opposition to five or six recent court decisions and against over 200 years of accepted law. When someone makes such a radical claim it is fair to ask the credentials and motivations of the person making such a claim.

        • John Woodman says:

          Well, I’ll agree with you that it is a fair question. And he certainly doesn’t seem to have any real credentials as a Constitutional authority.

          The other part of this is that his credentials as a lawyer are in areas in which one may either end up defending guilty parties (DUI, criminal law, and car accidents) or taking the side of someone and trying to win cases with claims — and amounts for claims — that may or may not be entirely justified (car accidents and injuries).

          There are some professions in which the scrupulously honest player is at a significant disadvantage.

        • Reality Check,

          What you add to this debate has been worthless and it continuous to so be. So, be proud that you are at least consistent.

    • Rambo Ike says:

      Unreal !

      Adding the “red herrings” so ObOts can run an ad hominem attack.

      To the intellectually honest it’s a sign the ObOts are feeling defeated.

      • Thomas Brown says:

        Yeah… We’re feeling defeated. After winning 123 court decisions vs. Birfoons winning 0. As in zero.

        What planet are you from? The Planet of Invincible Black Knights?

        • John Woodman says:

          RI is the perfect bootlicker.

          It doesn’t matter whether every word Mario has ever spoken is irrefutably shown to be false. Ike will still wave his pom-poms and confidently proclaim that Mario has carried the day and the “Obots” are all defeated.

          All the while stating that he’s “not a birther,” of course.

        • John Woodman says:

          What planet are you from? The Planet of Invincible Black Knights?

          My favorite line:

          Black Knight: “I’m INVINCIBLE!”

          King Arthur: “You’re a loony.”

        • Rambo Ike says:

          Those Kangaroo Court Decisions means diddly-squat to me.

          I’m looking at something else here on the subject matter being discussed, and if it’ll give me 3 wins & no losses.

          According to the scholars of history and law, Vattel’s work is given credit for modern day international law {1 win]. And again, according to the scholars, Vattel’s work was the most influential for America’s Declaration of Independence from both a philosophical & legal position{2 wins].

          Among the many sources available online confirming this is Wikipedia, the Left’s online Encyclopedia.

          Now it’s down to seeing if Vattel’s work was the #1 source guiding the American founders crafting of the US Constitution. So far, as I expected, it’s leaning heavily towards Vattel’s work.

          That would make it 3 strikes and you’re out for the ObOts.

          • John Woodman says:

            Those Kangaroo Court Decisions means diddly-squat to me.

            I presume by this you include the United States Supreme Court, which clearly found that children born on US soil of non-citizen parents were natural born citizens.

            But whether you or I like it or not, the decision of the United States Supreme Court is the law of the land.

            I’m looking at something else here on the subject matter being discussed, and if it’ll give me 3 wins & no losses.

            Your very first problem — in my opinion — is the way in which you frame the question.

            If you want to know the truth, don’t start by looking at the two sides of a question, picking the one you like, the one you wish to be true, and then “playing” for that “team.”

            If you want to know the truth, you have to suspend what you would prefer the truth to be, and examine both sides of a question skeptically and logically to determine which story fits the actual facts.

            Of course, that presumes you want to know the truth, which admittedly is probably not a valid assumption in your case.

            As far as Vattel goes, I’m not aware of a single person on either side of the issue who claims that he was totally without influence on our Founding Fathers. They were creating a new country, and they needed to define both the internal workings of that country and how we would interact with other nations. And in terms of international relationships with other nations, I’ve no doubt that they read — among quite a few other writers — Vattel’s writings on international law.

            But the evidence that Monsieur Vattel had any influence whatsoever on what our definition of citizenship was — and in particular, our definition of natural born citizenship — appears to be zero, zip, zilch, nada.

            I’ll say it again: There is no evidence at all that Vattel influenced our definition of “natural born citizen,” and it is crystal clear that the term itself was simply an updated variation of the term “natural born subject” from English common law.

            • John Woodman,

              Why do you not stop you lying. When did all things “citizen” become “natural born Citizen?” You are desperate.

              When are you going to publish your correction on what the sources of American common law were? I have brought this to you attention but I do not see your correction. When you publish your correction, you will have to totally change the thesis of this ridiculous thread.

            • Mario

              1. When are you going to stop lying about Minor v Happersett?

              2. How many judges have to rule that President Obama is a natural born citizen before you concede that you are wrong?

              3. Why are you unwilling to put your money where your mouth is?

              4. Why should we take the word of a DUI attorney from New Jersey with no background in Constitutional law vs. Justice Gray and at last count six judges?

              5. Why do you continue to lie about the Virginia citizenship laws of 1779 and 1783?

              6. Why do you run away from a fair and equitable debate like a coward who knows he has no case?

              7. How did you lose to a young inexperienced attorney in New Jersey with such a “slam dunk” case?

              Have a great weekend folks!

            • John Woodman says:

              When are you going to publish your correction on what the sources of American common law were? I have brought this to you attention but I do not see your correction.

              I’ve already made an update noting your objection to the thesis of this article, and your claim that no judicial decision, judicial statement or US law is necessary. Did you miss that?

              As for “lying,” I know, you know, and everybody who’s actually investigated the points know that I have been 100% truthful in everything I’ve ever said about the issue. They also know that your errors and apparent lies are both extensive, documented, and well known, and that you refuse to correct any of them even in the face of conclusive evidence that your statements are false, and even though you can’t answer the debunkings that point out the manifold falsehood of your claims.

              As far as asking me when I’m going to produce something: You didn’t even have to ask. I updated the article before your request.

              But when are YOU going to produce the quote from St. George Tucker that supposedly supports your claim? You’ve been asked for it well over half a dozen times now, over a period of weeks. You’ve promised — 5 days ago — to produce the quote; and broken that promise.

              Not that I every expected you to be truthful in that promise. You’ve lied about just about everything else you’ve ever said on the subject.

              And your falsehoods are, as I said, well documented.

            • John Woodman says:

              Some of your falsehoods, at least. Documenting all of them would take a pretty large volume.

  9. Chief Justice Fuller knew the jus soli English common law rule did not survive the American Revolution in America. And he also knew that a “natural born citizen” was not defined by looking to an English “natural born subject.” In his Wong Kim Ark dissent he said:

    Obviously, where the Constitution deals with common law rights and uses common law phraseology, its language should be read in the light of the
    common law; but when the question arises as to what constitutes citizenship
    of the nation, involving as it does international relations, and political as
    contradistinguished from civil status, international principles must be
    considered, and, unless the municipal law of England appears to have been
    affirmatively accepted, it cannot be allowed to control in the matter of
    construction.

    Nationality is essentially a political idea, and belongs to the sphere of public
    law. Hence Mr. Justice Story, in Shanks v. Dupont, 3 Pet. 242, 248, said that
    the incapacities of femes 708*708 covert, at common law, “do not reach
    their political rights, nor prevent their acquiring or losing a national
    character. Those political rights do not stand upon the mere doctrines of
    municipal law, applicable to ordinary transactions, but stand upon the
    more general principles of the law of nations.”

    ***

    The framers of the Constitution were familiar with the distinctions between
    the Roman law and the feudal law, between obligations based on
    territoriality and those based on the personal and invisible character of
    origin, and there is nothing to show that in the matter of nationality they
    intended to adhere to principles derived from regal government, which they
    had just assisted in overthrowing.

    Manifestly, when the sovereignty of the Crown was thrown off and an independent government established, every rule of the common law and
    every statute of England obtaining in the Colonies, in derogation of the
    principles on which the new government was founded, was abrogated.

    ***

    As to the jura coronæ, including therein the obligation of allegiance, the
    extent to which these ever were applicable in this country depended on
    circumstances, and it would seem quite clear that the rule making locality of
    birth the criterion of citizenship because creating a permanent tie of
    allegiance, no more survived the American Revolution than the same rule
    survived the French Revolution.

    Doubtless, before the latter event, in the progress of monarchical power, the
    rule which involved the principle of liege homage may have become the rule
    of Europe; but that idea never had any basis in the United States.
    As Chief Justice Taney observed in Fleming v. Page, 9 How. 603, 618,
    though in a different connection: “It is true that most of the States have
    adopted the principles of English jurisprudence, so far as it concerns private
    and individual rights. And when such rights are in question, we habitually
    refer to the English decisions, not only with respect, but in many cases as
    authoritative. But in the distribution of political power between the great
    departments of government, there is such a wide difference between the
    power conferred on the President of the United States and the authority and
    sovereignty which belong to the English Crown, that it would be altogether
    unsafe to reason from any supposed resemblance between them, either as
    regards conquest in war, or any other subject where the rights and powers of
    the executive arm of the government are brought into question. Our own
    Constitution and form of government must be our only guide.”
    And Mr. Lawrence, in his edition of Wheaton (Lawrence’s Wheaton, p. 920), makes this comment: “There is, it is believed, as great a difference between
    the territorial allegiance claimed by an hereditary sovereign on feudal
    principles, and the personal right of citizenship participated in by all the
    members of the political community, according to American institutions, as
    there is between the authority and sovereignty of the Queen of England, and
    the power of the American President; and the inapplicability of English
    precedents is as clear in the one case as in the other. The same view, with
    particular application to naturalization, was early taken by 711*711 the
    American commentator on Blackstone. Tucker’s Blackstone, Vol. 1, Pt. 2,
    Appx. p. 96.”

    United States v. Wong Kim Ark, 169 U.S. 649, 707-11 (1898) (C.J. Fuller, dissenting). Chief Justice Fuller was absolutely correct in what he said. The historical record proves him right.

    • This comment on Chief Justice Fuller is from me. I do not know why it says ‘Undefined.”

    • Mario

      So now you are reaching and quoting Fuller’s dissent in Wong Kim Ark? Fuller knew the implications of the decision very well when he wrote:

      Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.

      Fuller seemed to grasp the meaning of the majority decision. Apparently you do not.

      • Reality Check,

        Too bad that you have no real response to Chief Justice Fuller’s indepth and correct analysis.

        • Should be “in-depth.”

        • Mario

          It is called a dissent for a reason.

          • Reality Check,

            Don’t just avoid it because it was a dissent. Rather, show us how the analysis and reasoning is wrong.

            Remember that there are many famous dissents that later on became the majority.

            • gorefan says:

              Mario,

              Justice Fuller begins his dissent by saying:

              “The argument is, that, although the Constitution prior to that amendment nowhere attempted to define the words “citizens of the United States” and “natural-born citizen” as used therein, yet that it must be interpreted in the light of the English common law rule which made the place of birth the criterion of nationality; that that rule”

              was in force in all [p706] the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established;

              and

              that, before the enactment of the Civil Rights Act of 1866 and the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign Government, were native-born citizens of the United States.

              “Thus, the Fourteenth Amendment is held to be merely declaratory except that it brings all persons, irrespective of color, within the scope of the alleged rule, and puts that rule beyond he control of the legislative power.”

              And he goes on to say:

              “And it is this rule, pure and simple, which it is asserted determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words “citizen of the United States” and “natural-born citizen” used in the Constitution as originally framed and adopted.”

              Justice Fuller is saying that the majority opinion determined that English Common Law (“this rule”) “governed the meaning of the words “citizen of the United States” and “natural-born citizen” used in the Constitution”.

              English Common Law not American Common Law.

            • gorefan says:

              Mario,

              BTW, Justice Fuller never cites the Minor opinion as binding precedent for the definition of “natural born Citizen” even though the majority is citing English Common Law as the source of the definition. Why not?

            • ballantine says:

              And, as Gorefan points out, Mario must be arguing that Fuller is stupid when summazing the majority opinion and smart when saying Gray is wrong. And he was too stupid to understand Minor was precedent.

          • ballantine says:

            Well, all Mario can cite are people who lost, and of course, his anonymous writer. Fuller’s opinion is quite week as he doesn’t cite any early authority that actually supports him. The reference to Shanks was easily rebutted by Justice Gray showing Story spoke directly on point about the common law the same day. Of course, Fuller would not be so dishonest as to claim Story changed his mind. Notice Fuller doesn’t try to claim any other the other cases Mario cite. His argument on perpetual allegaince is very weak as he can find no one that actually said abandonment of perpetual allegiance meant abandonment of birthright citizenship. In addition, no one in the early republic thought the rule of public law was jus sanguinis either as the position of our state department and that of England made clear jus soli trumped jus sanguinis as a matter of public law.

            Justice Gray, on the other hand, is able to cite pretty nuch every legal giant in the early republic, the most famous citizenship cases, two attoney generals and a secretary of state who all directly support his thesis. He could have cited dozens of additional authorities like Madison, Rawle, Bouvier, Dane, Duer, Swift, Paschal, Burrell and on and on. Mario pretends such mountain of authority doesn’t exist.

            But perhaps Mario is making progress. Once he understands his position lost in Wong Kim Ark he can at argue that it should be overturned. Of course, then he would have to admit it is currently the law, which he will never do.

        • Jim says:

          “Despite plaintiff’s assertions, Article II, Section 1, Clause 5 does not state this. No legal
          authority has ever stated that the natural born citizen clause means what [plaintiff] claims it
          states. “The phrase ‘natural born Citizen’ is not defined in the Constitution, see Minor v
          Happersett, 88 US 162, 167 [1875]), nor does it appear anywhere else in the document . . .
          [Plaintiff] cannot wish into existence an interpretation that he chooses for the natural born
          citizen clause. There is no arguable legal basis for the proposition that both parents of the
          President must have been born on U.S. soil. This assertion is frivolous.”

          Strunk v. NY Bd. of Elections et al, No. 006500/2011 (N.Y. King County Supr. Ct. Apr. 12, 2012), Ord

          Another Judge says you are wrong. Wishing something is true is a lot different than something actually being true.

  10. John Woodman,

    I just read your update. You are still a liar. I guess you were not man enough to admit that the thesis of this thread is simply stupid and wrong.

    • John Woodman says:

      You’ll be interested to know that I’ve made further changes and corrections to the article.

      Unlike you, if I publish something that’s not entirely accurate, I correct it.

      How’s that quote from St. George Tucker coming?

    • Thomas Brown says:

      Wow. That’s the funniest thing I’ve read in a long time: the biggest liar on the planet (Mario) calling one of the most diligent, careful, honest and accurate researchers I have ever encountered (John) “a liar.”

      You are a shameless phony, Mario. Everybody knows it. No competent legal authority agrees with your swill, yet you pretend it is they who are the idiots. You hurl insults at the heads of your intellectual superiors just like monkeys hurl their feces at the zoo visitors whose ticket money buys their food, which they turn into feces and so on.

      That is a perfect analogy for Birtherism, Mario, if I do say so myself.

      You have lost; the game is over. Maybe you should take up some more honorable pursuit, like Alchemy, Astrology, or Holocaust Denying.

  11. I can make the argument that Minor v Happersett has been overturned not once, not twice, but three times. Bear with me…

    First, it is clear that the main finding that women were not afforded the right to vote was demolished by the 19th Amendment:

    The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

    Congress shall have power to enforce this article by appropriate legislation.

    So citing anything from Minor is akin to citing the Dred Scott decision, Scott v Sandford. I have seen Birthers try to do this but they usually are embarrassed and try to hide the fact that it is the infamous Dred Scott decision.

    Second, Wong Kim Ark overturned any notion that Minor defined the term natural born citizen. If Minor had “doubts” about the citizenship of children of aliens WKA settled those doubts.

    Finally, and I just happened across this one today, according to Justice John Marshall Harlan II the majority “silently overturned” Minor v Happersett in Reynolds v Sims in 1964. The astonishing admission was included in Harlan’s ‘s dissent in the voting rights case:

    Mention should be made finally of the decisions of this Court which are disregarded or, more accurately, silently overruled today. Minor v. Happersett, supra, in which the Court held that the Fourteenth Amendment did not [p613] confer the right to vote on anyone, has already been noted. Other cases are more directly in point. In Colegrove v. Barrett, 330 U.S. 804, this Court dismissed “for want of a substantial federal question” an appeal from the dismissal of a complaint alleging that the Illinois legislative apportionment resulted in “gross inequality in voting power” and “gross and arbitrary and atrocious discrimination in voting” which denied the plaintiffs equal protection of the laws. [n71] In Remmey v. Smith, 102 F.Supp. 708 (D.C.E.D.Pa.), a three-judge District Court dismissed a complaint alleging that the apportionment of the Pennsylvania Legislature deprived the plaintiffs of “constitutional rights guaranteed to them by the Fourteenth Amendment.” Id. at 709. The District Court stated that it was aware that the plaintiffs’ allegations were “notoriously true” and that

    the practical disenfranchisement of qualified electors in certain of the election districts in Philadelphia County is a matter of common knowledge.

    So there you have it. The case Mario Apuzzo loves to cite (except in his one and only case in federal court) has been overturned by the court twice and by an amendment to the Constitution. No wonder the courts have been less than impressed with Birther arguments.

    • Reality Check,

      I see you continue with your nonsense. The exact case that you rely upon to show Obama is a “natural born Citizen,” Wong Kim Ark, cited and quoted Minor and gave us its definition of a “natural born Citizen.” Now you tell us Wong overruled Minor by some type of secret process.

      What I love about liars is that they always get caught in their lies. You have been arguing that Minor is not about citizenship, but only about voting. Now you take Wong Kim Ark, which is only a citizenship case and has nothing to do with voting, and say that Wong overruled it. Please explain to us how a citizenship case overrules a voting case?

      Also, overruling Minor’s holding on women’s voting rights does not overrule its holding on what is a “natural born Citizen” which has nothing to do with voting for either men or women.

      • Minor was gutted three times Mario. Only an idiot would dip into that well.

      • Mario
        There was really nothing that had to be “overturned” from Minor on citizenship. Unlike you, Justice Gray understood that Justice Waite in Minor did not rule definitively on who was a natural born citizen. Gray quoted Minor for two purposes. In the first instance he said Justice Waite said the definition for “natural-born citizen” must be determined from “common law”:

        In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.

        In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said:

        “There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. 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.”

        So here Gray said that that Minor pointed us to “common law” for the definition and then immediately said that the “common law” he was talking about was English common law. The next several pages developed exactly what English common law said about who was “natural-born”.

        The next citation of Minor, and the one you mangle so dishonestly, comes later in the decision:

        That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: “Allegiance and protection are, in this connection” (that is, in relation to citizenship),

        reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of [p680] parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”

        Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship.

        The only adjudication that has been made by this court upon the meaning of the clause, “and subject to the jurisdiction thereof,” in the leading provision of the Fourteenth Amendment is Elk v. Wilkins, 112 U.S. 94, in which it was decided that an Indian born a member of one of the Indian tribes within the United States, which still existed and was recognized as an Indian tribe by the United States, who had voluntarily separated himself from his tribe and taken up his residence among the white citizens of a State but who did not appear to have been naturalized, or taxed, or in any way recognized or treated as a citizen either by the United States or by the State, was not a citizen of the United States, as a “person born in the United States and subject to the jurisdiction thereof” within the meaning of the clause in question.

        So Gray quoted the part of Minor you love to quote and for what reason? He quoted it to show the court did not rule out “children born in the United States of citizens or subjects of foreign States” from being natural born citizens. He said they didn’t do that in the Slaughterhouse cases and essentially the same panel of justices didn’t do it in Minor. It is there in plain easy to read English. Let me repeat that. The court was trying to find cases where the court previously had ruled on who were born citizens, aka natural born, under the original intent of the Constitution and as clarified by the Fourteenth Amendment. There is never any differentiation made between those two terms in WKA or in any other decision.

        So technically there was nothing in Minor that was “overturned” in Gray’s opinion because there was nothing that had to be overturned to rule that Wong Kim Ark was a natural born citizen. The only thing that was “overturned” was your dishonest interpretation of Minor.

        • John Woodman says:

          The remarkable thing is that Mario puts forth this imaginary “definition” of “natural born citizen” in Minor, and then also claims that Wong Kim Ark supposedly quoted and affirmed the (imaginary) ruling in Minor — when yes, Wong Kim Ark DID quote Minorfor the purpose of showing that that case did not rule out children of non-citizens from being natural born citizens.

          It just doesn’t get more dishonest than that.

      • Northland10 says:

        If Minor was about citizenship and defined a Natural Born Citizenship as 2 citizen parents, why did Justice Waite swear in Chester Arthur, whose father was not a citizen? Did he forget about his own opinion?

        It should be noted, the swearing in by Waite may not have been necessary but the wanted to be sure since the original oath was done with a state judge (being a last minute thing).

        • Great point Northland10. One of the characteristics of Birthers like Mario is they never look at the big picture because they are desperately trying to chop history into tiny little pieces so they can challenge a particular tiny piece and say “Aha! I can challenge this tiny little piece so I am right.” They never look at the consequences of their assumptions. Through judicious use of Google Leo Donofrio found a few sentences from Minor v Happersett and voila! an entire theory is born. We know Mario didn’t do the research because he didn’t even mention the case in his district court filings in Kerchner v Obama.

  12. John Woodman,

    You said:

    Apuzzo still has produced absolutely no evidence whatsoever that any American judge or legislature prior to the writing of the Constitution ever defined the term of art “natural born citizen” as “someone born on US soil of two US citizen parents.” We may therefore assume he has none.

    We must hunt elsewhere, then for this “American common law.”

    This is really more silliness from Computer AND Constitution expert, John Woodman. Who ever said that what you have stated is the standard in interpreting the Constitution? You love for people to cite cases for you. Why do you not cite for us one case from the U.S. Supreme Court that says that what you have stated is the standard in interpreting the Constitution.

    Furthermore, you cannot meet your own standard when it comes to how you define a “natural born Citizen,” i.e., any child who becomes a “citizen of the United States” at the moment of birth under any law, regardless of to whom born or where born. But then you are a typical Obot. Standards only apply to others but not to oneself.

    • Come on Mario. I offered to help you with research on cases that looked and whether a citizen at birth is a natural born citizen. Those are the cases you need to find. As an attorney you should realize those are the ones that count. I am ready to help you Mario. Forget Minor, it has been gutted three times. Only a fool would cite it.

      • Reality Check,

        You got it backwards. I am not the one who needs help finding cases. You are the one without any founder’s writings and U.S. Supreme Court cases that support your position. The consensus in the historical record and U.S. Supreme Court is on my side, not your side. You better find the cases, not me.

        • Last time I checked reality my position was kicking ass from New Hampshire to Georgia to Pennsylvania to Arizona to Mississippi to Alabama to California to Indiana to New York to Maryland and lastly to New Jersey. Now tell me again about what I need to find Mario?

        • John Woodman says:

          How’s that quote from St. George Tucker coming? You know, the one that supposedly supports your position? The one you promised to find?

          Maybe OJ will make parole in 5 years or so. Then you two could team up out on the golf course hunting for the real murderer and that St. George Tucker quote.

      • John Woodman says:

        It appears that Mario has been pretty well reduced to this.

        • That was funny and appropriate. :)

          Have you read Mario’s latest screed defending the nut case Chris Strunk in esse? Strunk is a whole bag of french fries short of a Happy Meal. Strunk says he “fired” Obama in 2009. Judge Schack was not impressed.

    • John Woodman says:

      Apuzzo still has produced absolutely no evidence whatsoever that any American judge or legislature prior to the writing of the Constitution ever defined the term of art “natural born citizen” as “someone born on US soil of two US citizen parents.” We may therefore assume he has none.

      Well, do you?

      Who ever said that what you have stated is the standard in interpreting the Constitution? You love for people to cite cases for you. Why do you not cite for us one case from the U.S. Supreme Court that says that what you have stated is the standard in interpreting the Constitution.

      YOU’RE the person who said “natural born citizen” is a term of art that is wholly different from the obviously extremely similar term of art “natural born subject.” YOU’RE the person who maintains that even though a “natural born subject” requires NO citizen parents, a “natural born citizen” requires BOTH citizen parents.

      Do you have any idea what an idiot, what a fool, what a charlatan, what a two-bit plaid-suited huckster you look?

      Furthermore, you cannot meet your own standard when it comes to how you define a “natural born Citizen,” i.e., any child who becomes a “citizen of the United States” at the moment of birth under any law, regardless of to whom born or where born. But then you are a typical Obot. Standards only apply to others but not to oneself.

      I’m not at all sure what you’re raving about. Are you saying I have to find and list court cases prior to the writing of the Constitution that define “natural born citizen” as not requiring two citizen parents? Such a statement is ridiculous when we have clear citation and precedent beginning with Calvin’s Case in 1607 telling us clearly that the children born on the soil of the country were always regarded as “natural born subjects,” unless they were children of foreign royalty or ambassadors or members of an occupying army. And that precedent has been cited and repeated and referenced numerous times, including by the US Supreme Court.

      If I come to you and state that contrary to all belief, evidence and custom the sky is actually green, then I need to provide some proof of that. And if I can’t, then I can hardly blame people for concluding that I am either a huckster or a clown.

      • John Woodman,

        The only huckster and clown is you. Look at your writings. They contain nothing but the smatterings of a haughty clown.

        • Thomas Brown says:

          Hilarious. First you start shooting blanks, and now you’ve been reduced to throwing spitballs. Your impotent rage at realizing your nonsense will never prevail, and that you are doomed to being a forgotten footnote to the careers of more sucessful men, is quite comical.

          Quit tearing down my country and grow the heck up.

          • JRC says:

            As I stated….these last two post (and Mario hasn’t even addressed the most recent) were probably the best that John has posted because there is no wiggle room for Mario, but he is squirming.

    • Mario’s blog post in support of Chris Strunk was presented to Judge Schack today in Strunk’s sanctions hearing in Brooklyn. Judge Schack’s reaction was basically “who the hell is this Apuzzo guy?” and it was ignored. Strunk has now been declared a vexatious litigant and has been barred from filing any future “Birther” lawsuits in the courts of the state of New York. Add Arthur Schack to the long list of judges who think Mario’s and the other Birther arguments are nonsense.

      • John Woodman says:

        So is he gonna have to shell out some dough? Or did he really luck out?

        • The ruling to award costs stands. Judge Schack gave the defendants 30 days to provide an accounting. IANAL but I think “costs” doesn’t mean the full fees charged by private attorneys. According to “Intrepid Reporter” the attorney for McCain-Palin and possibly others said they did not intend to file a request. Costs have been awarded in a few Birther cases but they amounted to hundreds of dollars not thousands. Since Strunk named everyone in the world as a plaintiff these costs may be a little higher.

          The ruling also means Strunk cannot file any future lawsuits without prior permission of the court against these same plaintiffs. He has essentially been branded as a fruitcake by the court.

      • ballantine says:

        Mario and his friends are now reduced to calling judge and judge after judge stupid or corrupt just like the severeign citizens and followers of all fringe theories. Mario whines that these judges do no analysis. Of course not. All they have to do is read what the Supreme Court has said. So they will keep stomping their feet and yelling while they are helping to create a whole body of case law that will only remove any doubt on the subject.

  13. jtmunkus says:

    So, let’s see. ..

    Do I believe hundreds of judges, Supreme Court justices, legislators and Congresspeople, the State of Hawai’i, the Congressional Research Service, the White House, 230 years of case law, the US Constitution, and President of the United States Barack Obama?

    Or do I believe the wild-eyed, court-rejected fabrications of an ambulance-chaser in New Jersey?

    Inexplicably, birthers pick the latter.

  14. nbc says:

    I find it fascinating how Mario tortures both the Minor decision as well as US v WKA, especially when the dissenting Judge and the Government in its submissions, understood the impact of the ruling of the lower and Supreme Court.

    Fascinating…

    • gorefan says:

      From the Government’s brief in Wong Kim Ark:

      “The question presented by this appeal may be thus stated: Is a person born within the United States of alien parents domiciled therein a citizen thereof by the fact of his birth? The appellant maintains the negative, and in that behalf assigns as error the ruling of the district court that the respondent is a natural-born citizen“.

      So the government thinks the lower court errored in declaring Wong a natural born citizen. Except the lower court never used that language. Judge Morrow simply called Wong a citizen at birth.

      I guess a 14th amendment citizen is natural born.

      • Mario is trying to answer that in comments at his blog. It is a real word salad:

        You said: “We now know that the government believed that if Wong was declared a citizen at birth then he was also natural born.”

        You are confounding and conflating what the government believed with what the government believed the lower court believed.

        I said: “What is interesting in this connection is that the Government [in Wong] said that one could not be a “natural born Citizen” if one’s parents were not U.S. citizens, for birth to such parents would result in the child being ‘born subject to a foreign power.’” This is what the government believed.

        You said: “The question presented by this appeal may be thus stated: Is a person born within the United States of alien parents domiciled therein a citizen thereof by the fact of his birth? The appellant maintains the negative, and in that behalf assigns as error the ruling of the district court that the respondent is a natural-born citizen.” This is what the government believed the lower court believed.

        Concerning “what the government’s understanding of the issue was,” under that very understanding even though Wong was a “citizen of the United States,” in the eyes of the government he could not be a “natural born Citizen” because he was “born subject to a foreign power.” So, the fact that the government believed that the lower court ruled Wong a “natural born Citizen” does not change what the government believed to be the correct definition of a “natural born Citizen,” for the government still believed that a “natural born Citizen” exclude anyone “born subject to a foreign power” regardless of what it believe the lower court ruled.

        You claim that anyone who is a “citizen at birth” is necessarily a “natural born Citizen.” On matter of citizenship, Congress has the power to only naturalize. Under those powers, Congress can create “citizens at birth.” Are you then saying that Congress can create “natural born Citizens” under its naturalization powers?

  15. BrianH says:

    I’ve been observing the discussions here and at other sites since the Arizona SOS issue made the news. It’s hard to be a pure observer entirely. Though I’m not sure I know how the HTML codes work. Here goes:

    Ballantine wrote:

    But perhaps Mario is making progress. Once he understands his position lost in Wong Kim Ark he can at argue that it should be overturned. Of course, then he would have to admit it is currently the law, which he will never do.

    I had been trying to discern whether Mr. Apuzzo and the Birthers actually realized that the position they advocate is that of the dissent in WKA. It’s hard to tell, given that at times they try to wrangle support out of isolated passages of the majority opinion.

    While I don’t know if it’s possible to add anything new to the discussion given the exhaustive treatment by Mr. Woodman and others, a few comments follow.

    1. Early in the opinion in WKA, Justice Gray writes:

    In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.

    Now, were I a person trying to square the Birther take on this case with the opinion itself, the first question that would arise in my mind is why the Court bothers to interject the notion of “NBC” into what’s unquestionably a 14th Amendment case. That is to say, if the Birther position is correct that the 14th Amendment, as relevant to the WKA and Minor cases (neither involved a naturalized person), pertains only to a “birth citizen” category that is distinct from the Article II provision, then WHY ON EARTH does the majority opinion place its analysis of Mr. Wong’s status within an NBC-centered framework? The opinion (by my count) refers to “natural born” 34 times (either by reference to “citizen” or “subject”). One would expect (on the further Birther assumption that Minor defined NBC in a way that clearly excluded Mr. Wong as an NBC) for the WKA court to leave out any discussion of NBC as being utterly irrelevant to the case before them.

    But, to the contrary, the opinion grounds its 14th Amendment analysis upon a thorough study of natural born citizenship. The more cogent explanation for this is that the WKA court treated the question of NBC under the common law and the question of “born . . . in the United States, and subject to the jurisdiction thereof” in the 14th Amendment as the same question. This view is supported by two points the Court makes.

    First, the WKA majority declares:

    Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional [p675] Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.

    So prior to the enactment of the 14th Amendment, white babies of alien parents were “native born” (a term the WKA uses interchangeably with “natural born”) citizens. The Court then later observes that the 14th Amendment “is declaratory in form, and enabling and extending in effect.” In other words, now with the 14th Amendment, children of alien parents of African (or, in Mr. Wong’s case, Asian) descent are extended the same “natural (native) born” status as previously was accorded to the U.S.-born babies of good, white, (European) foreigners.

    That’s why “natural born citizen” is central to the WKA court’s analysis; because the 14th amendment didn’t create some new “birth citizen” category that hadn’t previously existed; rather, it extended the natural born citizen status previously accorded to U.S.-born children of European alien parents to the children of African (and Asian) resident aliens.

    2. I note that the WKA majority addressed the question of the impact of the “Law of Nations” on the topic before them:

    It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law, as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations.

    But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, “citizens, true and native-born citizens, are those who are born within the extent of the dominion of France,” and

    mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil;

    and children born in a foreign country, of a French father who had not established his domicil there nor given up the intention of returning, were also deemed Frenchmen, as Laurent says, by “a favor, a sort of fiction,” and Calvo, “by a sort of fiction of exterritoriality, considered as born in France, and therefore invested with French nationality.” Pothier Trait des Personnes, pt. 1, tit. 2, sect. 1, nos. 43, 45; Walsh-Serrant v. Walsh-Serrant, (1802) 3 Journal du Palais, 384; S.C., S. Merlin, Jurisprudence, (5th ed.) Domicile, § 13; Prefet du Nord v. Lebeau, (1862) Journal du Palais, 1863, 312 and note; 1 Laurent Droit Civil, no. 321; 2 Calvo Droit International, (5th ed.) § 542; Cockburn on Nationality, 13, 14; Hall’s International Law, (4th ed.) § 68.

    Conspicuously absent from the list of authorities on International Law (i.e., the “Law of Nations”) is Monsieur Vattel. This, combined with the Court’s citation to numerous case law authorities, both English and American, which accord a child “natural born” status apart from citizenship of his/her parents, shows that the Vattel “two citizen parent rule” is not considered by the Supreme Court to be part of proper constitutional analysis. It’s the dissent in WKA that cites to Vattel. The dissent lost the argument. So shall the Birthers in every tribunal they attempt to pawn off their odd interpretations of Minor and WKA.

    Kudos to Mr. Woodman (and others) for the comprehensive efforts invested on the topic.

    • John Woodman says:

      Thanks, and you’ve done a fine job IMO both with your html codes and a contribution to the subject.

      I found this specific question particularly insightful:

      That is to say, if the Birther position is correct that the 14th Amendment, as relevant to the WKA and Minor cases (neither involved a naturalized person), pertains only to a “birth citizen” category that is distinct from the Article II provision, then WHY ON EARTH does the majority opinion place its analysis of Mr. Wong’s status within an NBC-centered framework?

    • Jim says:

      Good job BrianH, nice read. Thanks.

    • Suranis says:

      Nice post Brian. An angle I hadn’t thought about myself.

    • BrianH

      A great first post. I think your comment that the Birthers are trying to re-argue the losing side of Wong Kim Ark is very insightful. I have not heard that stated exactly in that fashion but you are spot on with the remark.

      I have been commenting some at Mario Apuzzo’s blog. He is in deep, deep denial at this point. Short of handing out sanctions the judges could not have more thoroughly trashed his case. They cited a section of the code that said his case didn’t even merit a detailed opinion. As Mario loves to say – ouch!

  16. BrianH says:

    Thanks, all.

    I could have added that the same puzzle is presented when trying to explain the Birther position against the actual text of WKA as to the English NBS comparative. Though I recall that point has been raised here a few times. But to round out my take on the case:

    If I understand the Birther argument, the NBC phrase in A2S1P5 is to be understood in light of an “American” common law that is distinct in operation from English common law on NBS, since NBS was purely jus soli and “we know” that NBC status requires two citizen parents (nod to Minor). If that position is correct, then one must conclude that Justice Gray didn’t get the memo, as his opinion is replete with citation and analysis of English common law NBS decisions (30 or so pages, including both English decisions and American cases referencing English cases). At best, the inclusion of this NBS material would have to be viewed as wholly superfluous, as the 14th Amendment (under the Birther view) provides an independent basis — born of U.S. legislative sovreignty — for a distinct “birth citizen” status distinct from the “natural born” concept of NBS. Or, even worse, it is downright confusing (a sure trap for future anti-birthers who won’t know how to properly discount its significance).

    Again, if the Birther position is correct, then WHY ON EARTH did Justice Gray undertake that analysis? That can’t be cogently explained from the Birther stance. I see no evidence in the WKA majority opinion at all to support the Birther theory that the Framers were casting off the English notions of sovereignty and natural allegiance in favor of some newer and uniquely American notion tied to parental citizenship. In fact (as quoted in my prior post), Justice Gray goes out of his way to show that there was no prevailing rule in Europe generally based on the “law of nations” that was distinct from the English common law rule. I guess one just has to discover this supposed shift from an understanding based on the English common law NBS concept to this American common law rule based on the Law of Nations floating in the ether between Justice Gray’s sentences.

    Again, the more succinct and cogent view of WKA is that the majority 1) viewed (a) the question of NBC status under the common law and (b) the question of ““born . . . in the United States, and subject to the jurisdiction thereof” in the 14th Amendment as being in essence the same question and 2) included the extensive analysis of English common law cases because they understood that the Framers’ derived their understanding of “NBC” from the directly corresponding notion of “NBS” in English common law (interchangeable terms, other than that republics have “citizens” whereas monarchies have “subjects).

    As with most things, the simplest explanation is often the best. The courts which so far have opined on President Obama’s NBC status have agreed.

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