English Common Law Requires Jus Sanguinis as Essential for Natural Born

I will point out again that "subject" and "citizen" are not the same thing.

A "subject" is the servant of the government (typically the monarch).

A "citizen" is the master of the government (typically a democracy or republic).

When we refer to "natural born citizen" we're not referring to "natural born subject" so we shouldn't confuse the two different terms. English common law related to "subjects" while the US Constitution referred to "citizens" of the United States. The criteria for each is different.

 

Nonsense mostly.

You only have to look at how the US Supreme Court in the Minor v Happersett case determined Virginia Minor to be a natural born citizen, which was without reliance on any definition found in the US Constitution, which includes no definition to be found in the 14th Amendment, as it is also a part of the US Constitution.

Subsequently, Virginia Minor was found to be a "citizen" without resort to the 14th Amendment, but the Supreme Court judiciary did rely on a "common law" to arrive at their holding, and this "common law" gave the judiciary cause to introduce and acknowledge doubts if native-birth sufficed to give native birthright citizenship at all, then the judiciary gave further merit to those doubts by stating that the doubts had yet to be legally solved.

So in light of this, it is ABSURD to say that native-birth sufficed to make a natural born citizen, when native-birth was barely worth the US Supreme Court's consideration for ordinary citizenship, let alone natural born citizenship.

Article II "natural born Citizen" is an NOT ELIGIBILITY REQUIREMENT for citizenship, it is rather a term of art to describe a class of native-born citizens with the highest possible allegiance to be eligible for the high office of POTUS, with the aim of excluding one class of native-born citizens from eligibility for POTUS due to the serious national security concerns in the Framing period where the imperative was to minimize as far as possible any foreign influence, loyalty, coercion, persuasion, allegiance and claim on the POTUS.

For the office of POTUS, there was less risk of foreign influence with a person born in US and to US citizen parents than there was for a child only native-born.

Native birthright AND natural birthright.

Jus soli AND jus sanguinis.

These were the qualities required to ensure highest possible allegiance, which is what the job of president called for.

The notion that the Framers intended anything less than these credentials for the high office of POTUS is ABSURD.

Article II "natural born Citizen" is an NOT ELIGIBILITY REQUIREMENT for citizenship.

Your point about the US citizens being sovereign makes sense, and if you consider that in the monarchical system the sovereignty is passed by natural descent, i.e. royal blood, so too then the sovereignty of the US citizen is passed by descent.

Sovereign begets sovereign by natural descent.

Sovereignty is not inherited from place but rather from blood.

 

Let's pause there for a moment and consider your claim that persons under English common law did not have unalienable rights. This would have come as a shock to the founders since the Declaration of Independence rather explicitly asserts otherwise. It asserts that unalienable rights derive not from governments at all, but from divine or natural law (pick your poison). That is what makes them "unalienable." It says that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights." Not just "some men" or just those born outside of a Monarchy. The Declaration is in fact largely a catalog of the founder's grievances regarding the Crown's violation of the common law, not a rejection of that common law for something different.

The unalienability of certain rights was a component of the common law going back at least as far as the Magna Carta in 1215 which was already a rejection (or at least a severe restriction) of the "Divine Right of Kings" more than half a millennium before the existence of the United States.

The US Supreme Court has repeatedly and directly declared this understanding to be false. Once again, Justice Gray writing for the majority in the case US v. Wong Kim Ark rides to our conceptual rescue. As part of his lengthy review of the history of Anglo-American citizenship law, he quotes Chancellor Kent as his authority that "Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land."

It seems to me that the distinctions you are trying to draw do not hold up well under closer scrutiny.

But as previously pointed out... citizenship is not an unalienable right at all. It is limited, restrictive, contingent and divergent. There are many nations without any jus soli citizenship at all. Would you suggest that US citizenship is an unalienable right while Italian Citizenship is not? More to the point, would you suggest that different US citizens have different effective sets of unalienable rights dependent on whether or not they were born citizens versus naturalized (let alone born jus soli versus jus sanguinis)?

The distinctions you are trying to draw here, and the assignation to citizenship of a status as "unalienable right" along the lines of "life, liberty and the pursuit of happiness" leads to instant incoherence.

It asserts that some Americans possess "unalienable rights" that other Americans do not. How then do we presume to call such a right "unalienable?"

You seem to betray here a certain fundamental misunderstanding of the source of citizenship. It is not some neutral characteristic of existence like hair color or shoe size. It reflects a mutual and obligatory relationship between individual and government in which each brings an active responsibility to the table. It is an exchange of value... the allegiance (originally "liegiance" as in "liege lord") of the governed in return for the protection of the government. This is what citizenship is, not a state of being but an active set of mutual obligations.

Unalienable rights prescribe no exchange, no circumstantial agreement between parties. What do we (or what should we) offer the government in exchange for our right to life? Our right to liberty? Our right to pursue happiness? These rights belong to us without question, without compensation, without concurrent obligation.

Some, though not all of this is true. It is not true (for example) that Congress could strip any born citizen (jus sanguinis or otherwise) of their citizenship, though it is certainly true that the laws prescribing such citizenship could be changed on a proactive (but not retroactive) basis. We saw in the last major revision of our citizenship laws (for example) a loosening of the residency qualifications for children born overseas to a single American citizen and an alien. But even that was not retroactive.

Further, the Supreme Court has clearly asserted that even naturalized citizens cannot be stripped of their citizenship involuntarily. The signature case to that effect is Afroyim v. Rusk (1967). What you appear to refer to here are the cases where Nazi's have been stripped of their naturalized citizenship and sometimes deported... but the distinction there is that their citizenship was gained under false pretenses and never valid in the first place. In each case, the government has had to go to court and prove that the persons lied in their applications for immigration and/or naturalization. Stripping them of their citizenship was no more an act of removing from them something they possessed than would be a seizure of stolen property from a thief.

I am unaware of any such example. Could you show me some? Can you show me one?

This is entirely untrue, though based upon a rather understandable misunderstanding. Birthright citizenship, be it either jus soli or jus sanguinis is a relationship established at the moment of birth. It cannot be "applied for" since it is a binary fact... it either exists or it does not.

The act you are referring to as an "application for citizenship" is something very different. It is an "application for recognition of citizenship." Certainly... for a person to take advantage of the privileges and benefits of citizenship, that citizenship must be recognized by the government. And a citizen born overseas cannot be recognized by any government at all until their very existence is brought to that government's attention.

But think about it... even the child born on US soil has to demonstrate their status before accessing those privileges and benefits. We need to provide proof of citizenship to get a drivers license, a passport, even these days a paying job. The only difference is that our "application for recognition of citizenship" was completed at birth in the form of a birth certificate, and the individual born overseas has to apply for recognition of their citizenship some time later.

Your account here is in error. He was always citizen from birth, but his parents never did the paperwork necessary to have that citizenship recognized. They should have done it when they returned with him from Canada. Instead he had to do it almost a century later.

But one day, one year, one century makes no difference. He did not magically become something at age 95 that he was not the day prior. He was a citizen from birth... simply not a recognized one.

 

Virginia Minor didn't apply for natural born citizenship status, but notice how the US Supreme Court with reference to a "common law" which the Framers were familiar with, held that Virginia Minor was a natural born citizen by way of native-birth to US citizen parents, without reliance on the Constitution (which included the 14th Amendment), the US Supreme Court (not the litigants) introduced and acknowledged doubts if native-birth to alien parents was enough to even make ordinary "citizen", then gave merit to the doubts as still to be legally solved.

What "common law" was that?

For the doubts to be solved in favor of ordinary citizenship qualification would only make the native-born child to alien parents a "citizen" at best, as was eventually the case when along came Wong Kim Ark and the Supreme Court of the US solved the doubts as to whether native birth sufficed to make a "citizen of the United States" with the SCOTUS stressing that Wong only scraped through due to the long-term commitment of his PARENTS as long-time residents domiciled in the US and their contribution to the business world in the US................... so it was really the parents of Wong that got him over the line, to just make it through as a "citizen" but NOT a natural born citizen.

So let's see, according to the US Supreme Court.........

native-birth + US citizen parents = natural born citizen

native-birth + alien parents = maybe not a citizen at all, definitely not a natural born citizen, obviously at the time considered as alien-born until doubts are solved. (and this was after adoption of the 14th Amendment)

later.......

native-birth + US citizen parents = natural born citizen

native-birth + alien parents + permanent domicile and residency + business activity = citizen of the United States.

What was the difference between the two?

US Citizen PARENTS!

 

I rest my case regarding the irrelevance of the 14th Amendment to the meaning of natural-born citizen.

And there you go again. The right to vote is not an unalienable right, as evidenced by that fact that a number of American nationals, along with some citizens such as convicted felons (in certain states) do not possess that right. How then can anyone pretend to call it "unalienable."

Further, the 19th Amendment did not protect a preexisting right that was being violated. Instead it created a new right that previously did not exist at all. In the Supreme Court decision in the case Minor v. Happersett, the conclusion of the court was that the State of Missouri was fully empowered to deny Virginia Minor access to the vote because voting was not a right at all, let alone a "privilege or immunity" of citizenship.

I'm sorry to have to correct you again Shiva, but other than the Constitution, the Naturalization Act of 1790 is the only Federal law ever passed in the entire history of the United States that actually does address natural born citizens.

And in so doing it establishes without any possibility of honest contradiction that the Framers of the Constitution understood natural-born citizenship to include both jus soli and jus sanguinis citizens at birth.

And this includes those who gained their natural-born citizenship via jus sanguinis. Most have their citizenship registered at the US Consulate in their country of birth within days of nativity.

 

And I will point out again that the United States Supreme Court says that they are.

 

She didn't apply for citizenship at all. Her citizenship status was conceded by both sides, was never an issue before the court, at any level as it moved through the court system.

 

Two types of born US citizens are recognized by the United States Citizenship and Immigration Service.

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45077/0-0-0-48575.html

 

And then treats them identically. This is because one is merely a subset of the other.

All native born citizens are natural-born. But not all natural born citizens are native born.

 

The US Constitution says they are NOT.

The Constitution recognizes members of the US body politic as citizens and citizens ONLY, then it recognizes that Foreign States might have citizens OR subjects.

Subjects go with monarchical systems and citizens go with republican systems, where particularly in the US the citizens are sovereign and have electoral system to place heads of state, where the subjects of a monarchical system do not have electoral system to place head of state.

In the US citizens have a right to ex-expatriation, whereas born subjects of the English sovereign are obliged with permanent allegiance as subjects.

Citizen to subject are as chalk is to cheese.

 

The Supreme Court did refer to the common law of England related to "subjects" in addressing the case of the United States v Kim Wong Ark but did not state that a citizen and a subject were the same and, if fact, addressed the fact that they are different. Do I need to quote the decision where this difference is noted? I can do that if necessary.

 

Absolute nonsense, like the rest of your absurd arguments......... you make stuff up as you go along.

There is nothing about the father being out of the country and it is totally irrelevant.

Coke is clear that a native-born is not a born subject unless "born under the ligeance of a subject".

This says it all.

If it were true that the Framers relied on the English law as a guide to definition of US natural born citizen, then for a native-born child in US to be a natural born citizen, then that child would have to also be "born under the ligeance" of a US citizen.

Game, set and match.

 

Says the guy whose side has lost more than 200 times in court to the guy whose side has won. I though the saying that everything is backwards in Australia was just a myth.

And that's a reference to the child... not to any parent.

It actually does. You just don't understand what it says.

Pretty much. Yes.

You still don't understand what that means.

 

Here is Lord Coke's description of a natural born subject, where he points out that there are at least TWO essential qualities to make a natural born subject, i.e. one who has the highest allegiance.

At least TWO ESSENTIAL qualities to make a natural born subject, and we already know that one of those ESSENTIAL qualities to be a natural born subject, is that a native-born child must be "born under the ligeance of a subject".

Then there is this that Coke also said....

 

I didn't make it clear in that last post so here is a revised post....

WRONG!

Here is Lord Coke's description of a natural born subject, where he points out that there are at least TWO essential qualities to make a natural born subject, i.e. one who has the highest allegiance.

At least TWO ESSENTIAL qualities to make a natural born subject, and we already know that one of those ESSENTIAL qualities to be a natural born subject, is that a native-born child must be "born under the ligeance of a subject".

Then there is this that Coke also said where it CLEARLY shows that YOU are WRONG in that the reference is to the PARENT and NOT the child.

 

And you still don't understand that what that means. It means that the child is born in a circumstance that places him under the King's protection, thus incurring the mutual obligation of liegance. This has nothing to do with the parent, and only to do with the child.

As to why you consider "nature and birthright" to automatically mean two completely different criteria is beyond me.

Further... your discussion of the "three incidents to a subject born" fails to account for the fact that the rest of that paragraph is explicit that not all three incidents are required simultaneously. For example, in the discussion regarding place of birth Lord Coke notes that place is optional, "If any of the king’s Ambassadors in forein Nations, have children there of their wives, being English women, by the Common Laws of England they are natural born subjects, and yet they are born out of the king’s dominions."

You need to get another hobby.

 

FWIW, I would just like to point out to my American friends here, that there are both British Subjects, and British Citizens. The implication that all Britons are subjects of the Crown, and thus of inferior status to Americans who are citizens of their Republic, is not accurate. I, for example, am a British Citizen, and have never been a British Subject.

A British Subject has traditionally meant any person born in any overseas territory under the sovereignty of the Crown (meaning within the British Empire). As from January,1949, every person who was a British subject by virtue of a connection with the United Kingdom or one of her Crown Colonies became a Citizen of the United Kingdom and Colonies.

http://en.wikipedia.org/wiki/British_subject

 

Leeland Davidson is a citizen because at least one of his parents was a citizen when he was born.

Your point seems to be that US citizens born abroad to at least one US citizen parent are not natural born because their citizenship may rely on the current laws enacted by Congress. While I agree that point is more worthy of discuss that MichaelN's complete two parent citizen nonsense I think that the consensus is that citizen at birth is equivalent to natural born. One argument in that favor is that if you look at the requirements for citizenship in the Constitution for Representative, Senator, and President it progresses from 7 years, to 9 years, to lifetime for the presidency. The "foreign influence" objection made by Birthers is also completely bogus because a president could have spent the majority of life in residence in another country and still be eligible.

There is also a good argument that if this point were ever adjudicated the courts would be most likely to rule in an inclusive way rather than exclusive and not overrule the choice of the voters. I know of only one decision where SCOTUS took the choice of the presidency from the will of the voters. That is why I hope history appropriately deals with those justices who reached that outrageous decision as it did with the Dred Scott court.

 

That's all very well, but American law has always regarded Subject and citizen as the same thing with respect to the law and when looking back at English common law precident., and that goes right back to the founding of the US.

For example Ainslie v. Martin, 9 Mass. 454, 456, 457 (1813).

 

Yeah, the whole reason for the discussion on women's citizenship in Minor v Happersett was TO ESTABLISH BEYOND DOUBT THAT MINOR and by extension all women WERE FULL CITIZENS. They did not want to have any implication that women were any less citizens than men, but other than that the whole thing was dicta and completely irrelevant to the actual ruling.

The actual ruling of the case was that voting was not actually an automatic right of citizenship, but a right granted by congress. This ruling is actually still somewhat important today as it allows states to deny the right to vote to some citizens, like for example Felons.

 

I understand that, and I was not really entering the discussion raging between two apparently opposing sides in this matter. I was merely trying to correct a seeming misconception that British people were subjects, not citizens.

 

Hey, that's cool and thanks very much But hey, MichealN is just sore because he IS a subject of the British crown by the pre 1949 definition, being from Australia

 

Wrong again.

Please show us that quotation from the 11th Amendment again, but this time highlight for us where it describes any difference whatsoever between "subject" and "citizen," or where it treats one any differently than the other.

I'll wait.

 

Since I have already quoted where the Wong Kim Ark decision declares "citizen" and "subject" to mean the same thing, yes, I think you do need to quote where the decision contradicts itself on that point.

In fact, let me double down with another quotation from Wong Kim Ark, where Justice Gray cites Justice Gaston of the Supreme Court of North Carolina to declare that:

 

I have already demolished your silly argument on this point, you were caught out in your error, and now who proceed to try and cover-up, squirming with all your verbal gymnastics.

You were WRONG, it is the ligeance of the PARENTS in the case of a child born in the realm to an alien father.

The "circumstances" include being "born under the ligeance of a subject" and that means, the ligeance of the father, not the child's ligeance as you have been shown and proven wrong in my prior post.

Lord Coke considers "nature" and "birthright" as two different criteria.

Coke......

i.e. natural descent AND place.

In a nut shell.....

Coke...

Once again, as you can see from this, that the place is not the governing or decisive criteria.............. it is the ligance of the father as a subject which is the decisive criteria as is shown in the case of the ambassadors and their English wives, as PARENTS they have a higher ligeance than the friendly alien parent visiting the realm.

The place is the variable and the lesser in importance, dependent on the degree of ligeance of the SUBJECT father.

The ligeance of the PARENT is not negotiable.