Monday, March 7, 2011

Clarification Of Points In The US Constitution

I often hear Conservatives complain that a person isn't a natural born citizen if one of his parents was not a citizen of the United States at the time of his or her birth upon US soil.  This is especially applied to President Obama.  It is also a wrong assumption on their part. It shows an ignorance of American Jurisprudence before the adoption of the Constitution.

Prior to the adoption of the US Constitution, it was English Law that was in force.  English Common Law to be precise gave each colonist his or her concept of citizenship and specifically Natural Born Citizenship.

For the definition of a “natural born subject”, William Blackstone (1723-1780), frequently cited for English Common Law, defined a “natural born subject” as follows:
“The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king;and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government;the name and the form are derived to us from our Gothic ancestors.***The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.”William Blackstone, Commentaries 1:354, 357--58, 361—62.
As we can see, for children born within the King’s dominions and allegiance, they were considered “natural born subjects” without any consideration for the citizenship of their parents. On the question of what the Framers meant when they inserted the “natural bornCitizen” clause in Article II, putative President Obama supporters argue that the Framers simply used the “natural born Citizen” clause in place of the English common law“natural born subject” clause. Hence, they argue that the clauses mean the same exact thing. In practical terms, they therefore argue that in the mind of the Framers mere birth on United States soil without any reference to the citizenship of the child’s parents (withexceptions for children of diplomats and of invading soldiers) made one a “natural bornCitizen.” In support of their argument, they cite language in United States v. Wong Kim Ark, 169 U.S. 649 (1898). The quote is:
“‘And if, at common law, all human beings born within the ligeance of the king, andunder 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.' ‘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 thegovernment and law of the land.' Id. 258, note.” United States v. Wong Kim Ark, 169U.S. 649, 664-65 (1898). (quoting Chancellor Kent’s Commentaries).
The authors of the Constitution were for the most part lawyers and judges deeply schooled in English Common Law, and had spent their entire careers working within its confines.  Logic dictates that they would base their new legal system around the very law in which they knew. And they did. A very good example of this is the fact in the greater part of Europe a person is considered guilty of the crime they are accused of.  They must prove their innocence.  Under English and US law, a person is considered innocent of the crime and the State (or Crown) must prove his or her guilt. This is found no where in the Constitution, but is accepted as law.

This issue has arisen before in American politics:
Chester Arthur (born of an American mother and Irish father, purported birthplace of

Canada) was sworn in as President, however his status as a "Natural born citizen" was challenged because he was born with British citizenship (therefore not jus sanguinis) and it is contended, on foreign soil (therefore not jus soli). Some argue that those born abroad to U.S. citizens are not eligible to ascend to the Presidency (not jus soli), since an act of the United States Congress such as the Naturalization Act may not overrule the Constitution (see "Natural born citizen" as presidential qualification). Presidential candidates George W. Romney (born in Mexico), Barry Goldwater and John McCain (born in U.S. territories), were never seriously challenged on the basis of their "natural born" citizenship, but no candidate falling under this classification has ever actually become President.
The other bemoaning is that the courts, especially the Supreme Court has no authority in the Constitution to decide whether a law is constitutional or not. That it is the President or even better the states who should decide the issue.  What a recipe for disaster that would be. President Obama would declare every law he didn't agree with unconstitutional, or you would have 50 different decisions from 50 different states. Inn one especially liberal state gun possession would be punished by life in prison, in another all drugs would be legal, in other abortion (including miscarriages) would be murder, in other it would be perfectly legal, and in Utah polygamy would be legal.  Anarchy Rules!

Once again the answer results from English Common Law. Under English law the courts decide which laws are legal and which laws contradict early law without trying to change the earlier law.

Remembering that the founders were lawyers and judges who practiced under English Law, it is easy to see how this was adopted by the first court to prevent anarchy within the legal system.

The Judiciary Act of 1789 is passed by Congress and signed by President George Washington, establishing the Supreme Court of the United States as a tribunal made up of six justices who were to serve on the court until death or retirement. That day, President Washington nominated John Jay to preside as chief justice, and John Rutledge, William Cushing, John Blair, Robert Harrison, and James Wilson to be associate justices. On September 26, all six appointments were confirmed by the U.S. Senate.

The U.S. Supreme Court was established by Article 3 of the U.S. Constitution. The Constitution granted the Supreme Court ultimate jurisdiction over all laws, especially those in which their constitutionality was at issue. The high court was also designated to oversee cases concerning treaties of the United States, foreign diplomats, admiralty practice, and maritime jurisdiction. On February 1, 1790, the first session of the U.S. Supreme Court was held in New York City's Royal Exchange Building.
Article III - The Judicial Branch Note

Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
John Blair and James Wilson were signatories of the Constitution. In fact James Wilson signed not only the Constitution, but the Declaration of Independence.  Thus these men not only knew the intent of the Founding Fathers, but were the Founding Fathers.

I find that opposition to the Supreme Court holding jurisdiction over the Constitution stems from anger over Roe V. Wade and both Engel v. Vitale and Abington School District v. Schempp. The last two removed prayer from public schools.  And not with decisions like McDonald v. Chicago or District of Columbia v. Heller.


WomanHonorThyself said...

most excellent!..too bad the Libs know nothing of this document eh!

Faultline USA said...

Very interesting and educational!!!