Dred Scott
The Dred Scott case, described by legal scholars as the worst Supreme Court decision ever, forms the legal foundation for Obama denialist definitions of Natural Born Citizen.
We have bantered about some on the question of racism and whether it plays a role in Obama denialism and the denialist views on citizenship. Whether that is so or not, Justice Taney’s decision in Dred Scott v Sandford [sic] was a clearly racially motivated decision, because it said that Negroes could not be citizens and white people could. It was as much racist as the laws (such as the Act of 1790) which said that only “free whites” could be naturalized as citizens. Taney tried to justify excluding a class from citizenship using criteria solely aligned with race.
Following is what James Kettner said about Taney’s decision in The Development of American Citizenship, 1608-1870 (pp 327-8), something I think bears directly upon Mr. Apuzzo’s natural born citizenship arguments that appear elsewhere on this site:
Taney’s conclusion that blacks could not enjoy the privileges and immunities of citizenship under the Constitution rested upon two premises. First, one had to accept the separation of state and national citizenship not only in theory but in fact. For Taney, the guarantees made to the “citizens of each state” in Article IV, section 2, protected only those members of the national community, and the clause must be therefore interpreted to read “the United States citizens of each State.” [That is one state recognizing a Negro as a citizen did not make him a national citizen.] Second, this national citizenship could not be held to derive automatically from birth “within the dominion and jurisdiction of the national government”. Rather those citizens who created the Union in 1789 formed a closed community which membership was restricted to descendants of the founders and to aliens co-opted by the process of naturalization [which incidentally was open only to free whites.]
In seeking to derive consistent exclusionist principles from an ambivalent legal tradition, Taney could only succeed by distorting history and making “bad law.” His conclusion that Negroes had never been citizens in any of the states before 1789 was reached in the face of clear historical evidence to the contrary, evidence that the dissenters quickly brought forward. Similarly, his insistence on a fundamental disjunction between state and national citizenship countered a long popular and judicial tradition of considering the two as inseparable dimensions of the same status. In making national citizenship exclusively the effect of naturalization or pedigree, he disregarded volumes of judicial precedents emphasizing place of birth without regard to ancestry. Taney’s opinion rested instead on the social fact of prejudice and discrimination.
From Dred Scott and the Problem of Constitutional Evil:
The Oxford Companion to the Supreme Court states: “consider the Dred Scott decision to be the worst ever rendered by the Supreme Court.” David Curries’s encyclopedic The Constitution and the Supreme Court maintained that the decision was “bad policy”, bad “judicial politics” and “bad law”.
Other commentators describe it as: “the worst constitutional decision of the 19th century”, “the worst atrocity in the Supreme Court’s history” “the most disastrous opinion the Supreme Court has ever issued,” “the most odious action ever taken by a branch of the federal government”, “a ghastly error,” “a tragic failure to follow the terms of the Constitution,”, a gross abuse of trust,” “a lie before God,” “an abomination,” and “judicial review at its worst.” “Infamous” and “notorious” are the preferred contemporary adjectives. In the words of former Chief Justice Charles Evans Hughes, the Dred Scott decision was a “self-inflicted wound that almost destroyed the Supreme Court.”
In historical context, the interesting story of the Dred Scott case is a lesson to those who might bring a suit in court just to prove a point. It’s possible to lose, and to lose badly. Who could have imagined how badly?
Dr. Conspiracy,
Kettner is correct that “Taney’s opinion rested instead on the social fact of prejudice and discrimination.” We have to admit that his prejudice was based on the social mores of that time. But his prejudice only affected how he applied the law to Dred Scott not whether or not the law that he applied was the correct law.
The problem with Dred Scott is that it refused to let blacks become members of American society and thus be recognized as citizens. In deciding whether Dred Scott was a “citizen,” the court said he was not because blacks, being slaves or descendents of slaves, were not part of the original members of the Founding society. To come to that conclusion, the Court had to only ask whether Dred Scott was qualified as one of the original citizens. The Court never had to address the question of whether he was a “natural born citizen.”
But once our society overruled the bad part of the case, i.e., blacks became citizens under the Civil Rights Act of 1866 and the 14th Amendment, the law in the case remained good law. That good law is its confimation of the definition of a “natural born citizen” provided by previous U.S. Supreme Court cases of The Venus and Shanks and other court cases that confirmed partus sequitur patrem. Also note that the U.S. Supreme Court again confirmed the Dred Scott’s definition of what is a “natural born citizen” after the Civil Rights Act of 1866 and the 14th amendment in the Slaughter-House Cases (1872), Minor v. Happersett (1875), Elk v. Wilkins (1884). and Wong Kim Ark ( 1898) (both majority and dissent).
So Dred Scott’s definitions of what is a “citizen” and what is a “natural born Citizen” are still good. The change is that blacks post-Dred Scott became “citizens” and “natural born citizens.” The definitions did not change, only the application of that definition did.
There is nothing left in the definition of a “natural born citizen” that is somehow discriminatory. That law is simple and straight forward. We have “citizens of the United States” who are defined by law. And we have “natural born citizens” who are also defined by law. No color and no race are involved in those definitions. That is why your injecting race, color, and Dred Scott in the Obama eligibilty question is nothing but a red herring designed to make the public believe that my “natural born citizen” argument is discriminatory and therefore a loser.
What’s the difference between Glenn Beck and a reptile?
One is hatched from eggs, eats insects, and sleeps under a rock.
The other is a reptile.
Nah!
One is hatched from eggs, eats insects, and sleeps under a rock.
The other spontaneously generated in an Everett City Sewer!
Mario Apuzzo: Also note that the U.S. Supreme Court again confirmed the Dred Scott’s definition of what is a “natural born citizen” after the Civil Rights Act of 1866 and the 14th amendment in the Slaughter-House Cases (1872), Minor v. Happersett (1875), Elk v. Wilkins (1884). and Wong Kim Ark ( 1898) (both majority and dissent).
That would be seem to me a rather fantastical reading of those cases. Further, your reply addresses but one part of Kettners objection: the historical flaw in Dred Scott, where the court held that blacks had never been citizens. It fails to address the two other criticisms, the artificial separation of state and national citizenship and the volumes of case law that contradict jus sanguinis requirements for citizenship. I find it hard to fathom how you can cite Wong without crossing both fingers behind your back (which must make typing difficult).
Just as Dred Scott misrepresented history, elevated fringe and minority opinion, and ignored legal precedent FOR THE PURPOSE OF EXCLUDING A CLASS, so you and your ilk take the same path FOR THE PURPOSE OF EXCLUDING AN INDIVIDUAL. I tell you one thing: whatever the underlying motivations you and Mr. Kerchner, and Ms Taitz, and the citizen grand juries, Devvy Kidd and the rest of the denialist crowd have, I guarantee that it is not simply the fact that Barack Obama’s father was British.
The foundation of Dred Scott is the asserted right of a society to base its citizenship in selecting people “like me” and rejecting the foreign. That is the essential purpose and meaning of Dred Scott. The 14th Amendment did not “fix” Scott, it eviscerated it. It said, you CANNOT restrict citizenship by parentage.
I’m traveling and won’t have time for a longer reply at this time.
aww.. you gys are gonna make Glenn Beck rub Vaseline under his eyes and cry!
No, I read it was Vicks VapoRub.
Dred Scott does not apply to Obama, because Wong Kim Ark’s parents were resident aliens. Obama’s parents were space aliens, from Krypton.
It’s a critical legal difference, and kudos to Mario and Leo for noting that, and taking it to court. I’m sure the SCOTUS will be swayed by their brilliant legal reasoning. Those three outshine Justice Cardozo. I’m truly impressed.
Right you are, Misha…. I need to brush up on my stagecraft, I see…
O/T: Citzens’ grand juries are tanned, rested, and back!
and they’re “taking the gloves off” this time!
considering that we’re in a “Constitutional Crisis of Biblical Proportions”, it’s about darn time!
“The Super Jury II Presentments will now include criminal charges against Nancy Pelosi, Obama and the DNC for eligibility and election fraud.”
Yessir! No one messes with the Zohan.
Dr. Conspiracy,
We already know that Dred Scott was wrong in how it applied the law. Can you cite one case that says Dred Scott relied on bad law?
“Can you cite one case that says Dred Scott relied on bad law?”
Normally, I do not respond to drivel, especially when it comes from someone ostensibly educated, rather than semi-literate like Sarah Palin.
So I’ll make it simple: Mario, YOUR SHEETS ARE NO LONGER HIDDEN IN THE CLOSET! I didn’t know that the KKK welcomed Americans of Italian descent, so I stand corrected. Of course, here in Philly we have Geno’s Steak Stand. To those who don’t know, Joey Vento actually put a sign at the counter which said “This is America. Order in English.”
http://en.wikipedia.org/wiki/Geno's_Steaks
So I guess I should not be surprised.
Cooper vs. USA
OT: The GOP defends KBR in an employee rape:
http://www.dailykos.com/storyonly/2009/10/7/790633/-GOP-backs-corporate-rape
You could not make this up.
The real question is upon what law did Dred Scott rely. It is a very citation-light decision. There’s a scattering of cites to state court decisions (which Apuzzo doesn’t like, unless they support Dred Scott) and a few federal cases cited for noncontroversal points of procedural law.
But Apuzzo’s point is a stupid one: Scott’s lack of citizenship was due to how the Constitution was written; the Constitution was amended. de Vattel isn’t mentioned until a concurring opinion — it never was part of the majority’s case.
Also note that the U.S. Supreme Court again confirmed the Dred Scott’s definition of what is a “natural born citizen” after the Civil Rights Act of 1866 and the 14th amendment in the Slaughter-House Cases (1872), Minor v. Happersett (1875), Elk v. Wilkins (1884). and Wong Kim Ark ( 1898) (both majority and dissent).
Well that’s just a lie.
Neither Minor nor Elk cite Dred Scott at all. The majority in Wong Kim Ark cites the dissent in Dred Scott (and also notes the 14th Amendment abrogated Dred Scott‘s central holding).
“But once our society overruled the bad part of the case, i.e., blacks became citizens under the Civil Rights Act of 1866 and the 14th Amendment, the law in the case remained good law. That good law is its confimation of the definition of a “natural born citizen” provided by previous U.S. Supreme Court cases of The Venus and Shanks and other court cases that confirmed partus sequitur patrem. Also note that the U.S. Supreme Court again confirmed the Dred Scott’s definition of what is a “natural born citizen” after the Civil Rights Act of 1866 and the 14th amendment in the Slaughter-House Cases (1872), Minor v. Happersett (1875), Elk v. Wilkins (1884). and Wong Kim Ark ( 1898) (both majority and dissent).”
Mario,
I really don’t want to be insulting, but who do you this is going to fool. I can’t believe you are still citing The Venus and Shanks. I would think every IL law student knows that a case citing Vattel for something other than who is a native citizen is not authority for who is a native citizen. Duh. Of course Dred Scott doesn’t support your argument either as only one Justice cited Vattel. And I can’t believe anyone who went to law school could claim Minor or Wong supports Vattel’s argument. Both said “natural born citizen” should be defined by the common law and as clever as you might think you are in trying to redefine the common law according to Vattel, such argument is too comical to even address. Wong held that the 14th amendment was declaratory of th English common law, at least to peope who can read, and the legislative history confirms such conclusion. In addition, after stating the the common law should define NBC, the court went on to state that the English common law rule of Calvin’s Case “prevailed under the constitution as originally established.” Pretty clear the court is saying both the original consitution and the 14th amendment are defined by the english common law.
I also would think that any IL would know that one can’t cite a case like Minor that declines to address an issue as authority for the issue it declined to address. Of course, Slaughterhouse had nothing to do with natural born citizenship and its statements about the 14th amendment are orbital dicta that have no authority after Wong. Honestly, your misrepresentations of case law is really pretty embarassing.
Is there some requirement that Birthers write in an incomprehensible stream of thought fashion? Following the link above I ended up with this:
“It’s a citizen checking and balancing the Chief Justice and SCOTUS via invocation of chain of command! It makes the petitioner who is both victim and counsel THE constitutional authority, the legal President:”
Huh?
“It’s foreign if it is not related to the Constitution our Founders authored and then lived out as real. You can be a foreign body of government but be born here as running around calling yourself American does not make it so any more than calling yourself natural born makes it so. As We The People ARE the government we are to take government in our hands but not the law. “Government” is the seats, the offices and institutions…if you know then you act with or without a court order as that is what a natural born American does. Marshall said you need not wait on any paper as you already have the only paper that counts – The Declaration, The Constitution and Marbury V Madison itself!”
Well at least this one seems to use spell checker. I think she is upset about something and advocating the overthrow of our government, but to be honest I really am not sure what she is saying.
Heads up–
Alan Keyes claims that Orly called him and said that Judge Carter is moving forward on Barnett v. Obama:
http://loyaltoliberty.blogspot.com/2009/10/judge-confirms-eligibility-trial-to.html
Doc:
Why so quiet about the Carter hearing now making the tenative court schedule non-tenative?? Seems as though the MTD was kicked in the shins partly or entirely.
Shouldn’t the Flying Monkeys be informed so they cas gasp and moan???
Any actual evidence that the motion to dismiss was denied (other than accuracy-imparied Taitz)?
JTX….
Really, I have no concerns whether any of these issues reach court. President Obama has no obligation to prove his NBC status and these folks can’t even remember to sign their petitions, let alone manage to put together actual evidence.
A court case would be very entertaining. Thats one i would watch on TV
Could someone who is a real lawyer, check on this? AFAIK, eligibility rests with Congress.
Here is why Taitz thinks the motion to dismiss was denied.
See the words “motion to dismiss” or “denied”?
It appears to simply be the minute entry for the October 5th hearing. It is not a ruling by the Judge.
She is truly a loon.
Taitz’s copy of the order. Note: “Motion taken under submission.”
And she has already contacted the US Attorney’s office to ask for discovery.
The US Attorney replied “Nuts”
For those who don’t get the historical reference:
http://www.thedropzone.org/europe/Bulge/kinnard.html
Yes, Bob:
Doesn’t it look like the Judge is waving in an opportunity to clean house with a Summary Judgement?
Benji Franklin
So I assume that this statement:
“you do not finalize dates unless there will be a trial.”
is not correct?
Nope; it looks like a routine minute order recapping Monday’s hearing.
That is not correct.
When a case is dismissed, the last line of the order is (words to the effect of) “the trial date is vacated.”
Ah. Thanks for clearing that up for me.
Actual minute order:
http://www.scribd.com/doc/20761725/Barnett-v-Obama-Minute-Order
ballantine,
Your really covered a lot of ground. Seems to me that you are the one that has much explaining to do, not me. You are the one ducking everything. Talk about laugh. You want to convince the Court that the Founders used English common law to constitute the new nation and define citizenship. The historical evidence is overwhelming that the Founders used natural law and the law of nations to define citizenship. The English common law was used in the states for local matters and nothing more. Keep twisting and turning. You are the one that is ridiculous.
misha,
Believe me you have seen nothing yet.
Name one early authority that used law of nations rather than the common law. Name one authority prior to Dred Scott defining “natural born” or “native” according to Law of Nations, just one without redefining terms to such your argument. I can cite authority all day if you would like:
“As the President is required to be a native citizen of the United States…. Natives are all persons born within the jurisdiction and allegiance of the United States.” James Kent, COMMENTARIES ON AMERICAN LAW (1826)
That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted) is a happy means of security against foreign influence,…” St. George Tucker, BLACKSTONE’S COMMENTARIES (1803)
” It is not too much to say, that no one, but a native citizen, ought ordinarily to be entrusted with an office so vital [the presidency] to the safety and liberties of the people. But an exception was, from a deep sense of gratitude, made in favor of those distinguished men, who, though not natives, had, with such exalted patriotism, and such personal sacrifices, united their lives and fortunes with ours during the Revolution….” Joseph Story, A Familiar Exposition of the Constitution of the United States, pg. 167 (1842 ed.)
“Citizenship” ….Citizens are either native born or naturalized. Native citizens may fill any office; naturalized citizens may be elected or appointed to any office under the constitution of the United States, except the office of president and vice-president.” Bouvier Law Dictionary (1843)
“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.” William Rawle, A View of the Constitution of the United States, pg. 86 (1829)
“The first section of the second article of the Constitution uses the language, ‘a natural-born citizen.’ It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.” Justice Curtis, dissenting, Dredd Scott v. Sandford,, 60 U.S. 393 (1857).
“The Constitution itself does not make the citizens, (it is. in fact,made by them.) It only intends and recognizes such of them as are natural—home-born—and provides for the naturalization of such of them as were alien—foreign-born—making the latter, as far as nature will allow, like the former. …” Attorney General Bates, Opinion of Citizenship, (1862)
“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. The children of ambassadors are in theory born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.” Justice Swayne, United States v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866)
“A Natural Born Citizen.” — Not made by law or otherwise, but born… “Natural Born Citizen” recognizes and reaffirms the universal principle common to all nations, and as old as political society, that the people born to a country do constitute the nation, and, as individual, are natural members of the body politic…Every person born in the country is, at the moment of birth, prima facie a citizen.” George Washington Paschal, THE CONSTITUTION OF THE UNITED STATES DEFINED AND CAREFULLY ANNOTATED, (1868)
“That the father and mother of the demandant were British born subjects is admitted. If he was born before 4 July, 1776, it is as clear that he was born a British subject. If he was born after 4 July, 1776, and before 15 September, 1776 [i.e., when the British occupied New York], he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.” Justice Story, concurring opinion, Inglis v. Sailors’ Snug Harbor, 3 Pet. 99. (1830)
“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…I conceive that every person who owed this primary allegiance to the particular community in which he is born…” James Madison, The Founders’ Constitution Volume 2, Article 1, Section 2, Clause 2, Document 6 (1789)
“The people are considered as aliens, born in some foreign country, as inhabitants of some neighbouring state in the union, or natural born subjects, born within the state. It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born. Allegiance is defined to be a tie, that binds the subject to the state, and in consequence of his obedience, he is entitled to protection… The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.” Zephaniah Swift, A system of the laws of the state of Connecticut: in six books, Volumes 1-2 of A System of the Laws of the State of Connecticut: In Six Book, pg. 163,167 (1795)
“Whether a person born in the United States or becoming a citizen according to the established laws of the country can divest himself absolutely of that character otherwise than in such manner as may be prescribed by law is a question which it is not necessary at present to decide.” Chief Justice Marshall, MURRAY V. THE CHARMING BETSEY, 6 U. S. 64 (1804)
“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)
Should I keep going?
“misha, Believe me you have seen nothing yet.”
That’s what I’ve heard since Jan.20. Obama will be re-elected, and Corey Booker will follow. Better stick to DWI.
And remember, you heard it here first.
Perfect summation:
“It’s ironic that the same people who can’t even understand the import of particular court proceedings are the ones arguing we’ve got it all wrong on the meaning of ‘natural born Citizen’ in the Constitution.”
BOB:
Better read my post again and see if I said anything about the MTD.
Apparently, Keyes has no problem waiving his own attorney/client privilge.
Better read my post again and see if I said anything about the MTD.
You wrote: “Seems as though the MTD was kicked in the shins partly or entirely.”
So, yes, you did, and no, it wasn’t.
From Taitz’s site: Citing the “final” scheduling order, Taitz moves for relief from the discovery stay in Barnett v. Obama.
Why is it dated Sep 16?
It’s not. That was the date of the motion of the motion staying discovery she is seeking relief from. She is seeking relief from “the motion staying discovery” which came out on Sept 16.
Thanks Jo! I misread, (don’t tell misha).
“It’s a citizen checking and balancing the Chief Justice and SCOTUS via invocation of chain of command! It makes the petitioner who is both victim and counsel THE constitutional authority, the legal President:”
It may be a rather surprising claim, but it’s straightforward enough. She’s saying that as a result of her legal filings, she has become the President of the US, replacing Obama. If you read on it’s quite explicit.
ballantine,
That is quite a list of ammunition that you put forth. The question is what am I to do with such an onslaught?
You said: “Should I keep going?” You probably do not have any more such sources and are just trying to make me believe you have more. Notwithstanding, I’ll take you up on your challenge and ask, please provide more. If you have no other such sources, I’ll know that the most that I have to deal with is right here in your list.
After you answer me, I will craft my response and provide it to you.
Are there more citations?
Smith v. Alabama, 124 US 478
Doe v. Jones, 3 Pet. 155
Shanks v. Dupont, 3 Pet. 242
Story, Conflict of Laws, § 48
McCreery v. Somerville, 9 Wheat. 354
Levy v. McCartee (1832), 6 Pet. 102
United States v. Rhodes (1866), 1 Abbott (U.S.) 28
Kilham v. Ward (1806), 2 Mass. 236
State v. Manuel (1838), 4 Dev. & Bat. 20
Mr. Marcy (Sec. State) 1854, 2 Whart.Int.Dig. (2d ed.) p. 394
Attorney General Black 1859, 9 Opinions, 373,
Attorney General Bates 1862, 10 Opinions, 328, 382, 394, 396.
Binney, Alienigenae of the United States (1853)
Yes, Mario, I can keep going.
Doe v. Jones, 3 Pet. 155
or
Doe v. Jones, 4 T.R. 300, 308
Dear Mario,
While you warily dread history’s conspiracy with ballantine to embarrass you in stages, are you still loathe to explain why given the simplicity of your NBC interpretation, no state in the union has ever found a way to specify what constituted the Natural Born Citizen component of Presidential Eligibility as a written standard on its POTUS or VPOTUS candidate registration forms, leaving solely the candidate’s mere unquestioned personal opinion, as the only determinant of the compliance that was actually being avowed?
Admiringly,
Benji Franklin
Sure, here are some more.
“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.” Rawle on the Constitution, 86.” American Jurust and Law Magizene, January, 1834
“The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President… 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 (NY 1844)
“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 o 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. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle.” Horace Binney, American Law Register, February, 1854. 2 Amer.Law Reg.193, 203, 204.
“The first section of the second article of the Constitution uses the language, “a natural-born citizen.” In these [illegible] that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which [conferred] citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general definition has been, in conformity with the common law, that free persons born within either of the colonies were subjects of the King; that by the Declaration of Independence, and the subsequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legislative power of the states, or availed themselves, reasonably, of the right to adhere to the British Crown in the civil conte[x]t and thus to continue British Subjects.” John Codman Hurd, THE LAW OF FREEDOM AND BONDAGE IN THE UNITED STATES (1858)
“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).
“Every person born within the United States, its Territories, or districts, whether the parents are citizens or aliens, is a natural-born citizen of the United States in the sense of the Constitution…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 are such as are born out of it.” …… “It makes a man a subject in England, and a citizen here, and is, as Blackstone declares, ‘founded in reason and the nature of government’ … The English Law made no distinction … in declaring that all persons born within its jurisdiction are natural-born subjects. This law bound the colonies before the revolution, and was not changed afterward.” Rep. Wilson, 1866 Civil Rights Act debates. 10 Cong. Globe, 39th Cong., lst Sess. 1115 (1866); id. at 1117
“Mr. Adams suggested an objection to the amendment as it stood, which appeared to arise out of the treaty of cession of Louisiana. His original idea was adverse to the limitation to natural-born citizens, as superfluous; but, as it stood, the terms upon which Louisiana was acquired had rendered a change necessary, for it appeared to him that there was no alternative, but to admit those born in Louisiana as well as those born in the United States to the right of being chosen for President and Vice President.” John Quincy Adams, 11/23/1803, ABRIDGMENT OF THE DEBATES OF CONGRESS, FROM 1789 TO 1856, Volume III, John Rivers, pg. 21, (1857
“The king of England, according to the rule of modern civilization, claimed as his subjects all persons born within his dominions : in like manner every one who first saw the light on the American soil was a natural-born citizen ; but the power of naturalization, which, under the king, each colony had claimed to regulate by its own laws, remained under the confederacy with the separate states.” George Bancroft, History of the United States, from the Discovery of the American Continent: The American Revolution., pg. 439 (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….I read from Paschal’s Annotated Consitutuion, note 274: “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. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons. (2 Kent’s Com. 3d ed. l ; Calvin’s Case, 7 Coke, 1 ; 1 Black. Com. 366; Lynch v. Clark, 1 Sandf. Ch. Rep. 139.)” Sen. Trumbull (author or the Civil Rights Act of 1866), April 11, 1871, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)
“The country where one is born, how accidental soever his birth in that place may have been, and although his parents belong to another country, is that to which he owes allegiance. Hence the expression natural born subject or citizen, & all the relations thereout growing. To this there are but few exceptions, and they are mostly introduced by statutes and treaty regulations, such as the children of seamen and ambassadors born abroad, and the like.” Leake v. Gilchrist, 13 N.C. 73 (N.C. 1829)
“Who, then, are citizens of the United States ? I would answer, 1st, those subjects of Great Britain who, being entitled to all the rights and privileges of British subjects, became American citizens by the Revolution; 2d, those who were declared citizens, or naturalized by the States, previous to the adoption of the Constitution of the United States; 3d, European foreigners naturalized in conformity to the law of Congress ; and I would add, 4th, the children born in the country of aliens, who were of a description that might have been naturalized.” Rep. Smyth, of Virginia, December 9, 1820, reported in ABRIDGMENT OF THE DEBATES OF CONGRESS, FROM 1789 TO 1856, Volume III, John Rivers, pg. 30, (1858)
“The 5th section of the 2d article provides, “that no person except a natural born citizen,” shall become president. A plain acknowledgment, that a man may become a citizen by birth, and that he may be born such.” Amy v. Smith, 11 Ky. 326, 340 (Ky. 1822)
“In the English cases, and in monarchies and empires, allegiance is said to be due to the king or sovereign prince ; but the principle is the same in a republic, and we only substitute the name of State, or Commonwealth, or United States, to that of king…” Nathon Dane, A general abridgment and digest of American law: with occasional notes and comments, pg. 686, (1824)
Thus, where A died seized of lands in Maryland, leaving no heirs except B., a brother, who was an alien, and had never been naturalized as a citizen of the United States, and three nieces, the daughters of the said B, who were native citizens of the United States; it was held that they could not claim title by inheritance through B, their father, he being an alien and still living.” McCreery’s Lessee v. Somerville, 22 U.S. 9 Wheat. 354 354 (1824)
“Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign State; . The term ‘citizen,’ as understood in our law, is precisely analogous to the term ‘subject’ in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a ‘subject of the king’ is now ‘a citizen of the State.” State v. Manuel 4 Dev. & Bat. 20, 24-26 (1838)
No man but a native, or who has resided fourteen years in America, can be chosen President.” Elliot’s Debates –DEBATES IN THE CONVENTION OF THE STATE OF NORTH CAROLINA, ON THE ADOPTION OF THE FEDERAL CONSTITUTION, pg 195-196 (statments of future Supreme Court Justice James Iredell, July 30, 1788).
The president must, by law, be a native born citizen; so that none need aspire to that high calling, but those who might emphatically be termed natural sons of America.” Joseph Dennie, John Elihu Hall, The Port Folio, pg. 199, (18)
“By the provisions of the federal constitution, the President and Vice President of the United States are required to be native-born citizens; and the President is required to cause the laws of the Union to be executed.” Rep. Russel, Congressional Globe, 24th Cong., 1st Sess. pg 4256 (1836)
IN ANY EVENT….
…Haven’t we conclusively established that Vattel required only one citizen parent?
Did I miss some new brilliant heretofore unreported discovery by Meretricious Mario?
Or is he still sticking to repeating a fully discredited theory (just as he does with the Pakistanese thing)?
I am puzzled by this (resurgent?) streak of what is clearly lunacy in American society.
Racism certainly is a trigger, but this is on the level of UFO worship, and instead of being limited to the occasional compound of nuts, it seems to run much deeper and wider.
A decade or so ago we had the Raelians in France (a kind of Scientology-like cult) but we kicked them out — I think they went to Canada. It was that or jail time.
I think you Americans are making a grave mistake tolerating that kind of drivel. It’s obvious those people are trying to create “lone wolves” to assassinate your President.
A decade or so ago we had the Raelians in France
They’re here in America now, and they’ve got our women. <– NOT SAFE FOR WORK!!!
“Believe me you have seen nothing yet.”
We believe u, all that has come out of u & ur ilks are (or is it “is”) NOTHING. !!!
How much nothing can we continue to look forward to ??
Now i see it !!!!
“It’s obvious those people are trying to create “lone wolves” to assassinate your President.”
That’s exactly what they are trying to do. Remember Pittsburgh? I have written posts before saying this: Orly goes to gun shows, giving incendiary speeches. And she is trying to drive Obama from office by circulating scurrilous rumors.
I can’t find the link, but I read that threats to Obama are up 44% from Bush Jr. And Bush was nothing more than a frat boy. I can’t wait to read what history does to him. The worst military blunder in US history, for starters. He also has a DUI misdemeanor conviction. Calling Mario.
http://archives.cnn.com/2000/ALLPOLITICS/stories/11/02/bush.dui/
http://www.thesmokinggun.com/graphics/art/bushdui1.gif
http://www.thesmokinggun.com/archive/bushdmv1.html
It is not dated Sep 16. It is dated Sep 18.
Doc 13 is the same letter of transmittal going from the District Court to the USCA, and it originated on Sep 17. The USCA stamped it Sep 18 when received there. The return copy of Doc 13 with the USCA No. 09-14698C is Doc 15, docketed on 10/06.
Doc 11, the Notice of Appeal to the DC was cited by Doc 12 for lack of signature and required to be refiled. I see no evidence of a signed copy being refiled to the DC.
Mario Apuzzo: The historical evidence is overwhelming that the Founders used natural law and the law of nations to define citizenship.
That reminds me of the joke about an optimistic child who, given a pile manure, started digging in the firm belief that with all that manure there must be a pony around somewhere.
If this overwhelming evidence exists, no one commenting here, yourself included, has presented it. (BTW, I finally finished Kettner’s book on American Citizenship, and it’s not in there, except in the racially-motivated fractured decision in Dred Scott.)
jtx: Why so quiet about the Carter hearing now making the tenative [sic] court schedule non-tenative [sic]??
Short answer is that I’ve been traveling, and just heard about it. But so long as the motion to dismiss is pending, nothing has really happened.
I read that yesterday over in Freeperland, and it’s a big bundle of crazy all wrapped up in the inability to write a coherent thought.
Anyone who has ever been in Federal Court knows that scheduling orders are initiated immediately and are changed numerous times throughout the life of the case. Fed Courts want to push their cases through on a fast track and this helps keep the attorneys focused but are no means an indication that the case won’t be dismissed on a MTD or MSJ.
uh, yeah
Short memory problems?
The Ledger-Enquirer inquires: “Why won’t this woman go away?”
…interesting that this is, not some Obot or pundit, but the Op-Ed from the small(ish)-town newspaper that got sucked into Birfistan.
What’s even worse are the lame brains on her various boards/facebook page, etc., that are all of a sudden master litigators, trying to read multilevels of “legal chessplaying” into routine sceduling order.
My personal fav is the birfers trying to claim that the judge is actually trying deny the defense the ability to appeal by never ruling on the MTD and going ahead without an order. Besides that fact that they see no problem of denying someone their right to appeal, none of the master legal minds seem to realize that until the judge rules on the MOT the proceedings are stayed, and the defense doesn’t have to file an answer util he rules. No answer, no trial. But hey, what do I know…besides the Federal Rules of Civil Procedure.
Bob:
You make it clear that you really DON’T grasp what was said – no surprise …
You made an incorrect statement about the motion to dismiss, and then you denied saying it.
I grasp.
“American Super Grand Jury II – Electric Boogaloo”
Ok, time for Wild Speculation: Thursday PM edition!
What’s everybody’s predictions for what’s gonna happen next? A decision on the motion to dismiss by Carter tomorrow? A smackdown of Orly’s latest? More compelling articles by John Charlton/Charles Lincoln? Leo gives up to go back on the poker circuit, because he’s just disgusted?
I think Judge Carter will dismiss on Tuesday, I think Monday’s a holiday. Do Patriots Celebrate Columbus Day? Commemorating Columbus and his crew bringing Small Pox, measles, diphtheria to the New World and taking home the Potato, Corn, Sugar and….syphillis!
Look at what they said (particularly the italicized part):
They don’t take kindly to malingering down there.
Monday is a government holiday.
Prediction: Nothing “new” will occur in birfistan in the few days.
Oh, sure, the usual suspects may crank out a few more blog posts, but no actual events will happen.
Bonus Prediction: Someone, somewhere, will post this comment, “Why doesn’t Obama just pay the $10 to release his birth certificate and make this all go away?”
I think the judge may have an order of some type tomorrow. Our good ol’ boy federal judges don’t take kindly to this type of BS.
Hey, jtx, did you say that the MTD had been kicked in the shins partly or entirely?
Is that about the MTD? What does kicked in the shins mean? Why would the “Flying Monkeys” gasp or moan?
Here’s a clue. I’ve got a trial set for the first week next month. I tried to call the clerk to determine if our trial was really going to go on that date. They told me to call back a week before hand, that they wouldn’t know before then.
I’ve also had a case where the “final” trial date has come and gone at least 4 times in the 4 years since the case was filed.
I’m surprised it’s taken this long for Judge Land to rule on sanctions (granted, I haven’t looked to see what his calendar looks like). Considering Orly’s response to his show cause order, I would have thought he would have smacked her pretty hard by now.
And are all west coast judges as patient as Judge Carter? Good God, most judges I’ve encountered wouldn’t be nearly as nice considering some of the b.s. she’s tried to pull.
Greg: What does kicked in the shins mean?
I think it comes from an expression of glee over the pain of others.
Mr. Apuzzo takes some comfort in his claim that Dred Scott v. Sandford was never overturned (contrasted to another case, Plessy v. Ferguson that was clearly overturned by Brown in 1954), even though Dred Scott is routinely excoriated as a bad decision in legal writing.
Of course, the Supreme Court had no immediate need to overturn Dred Scott since the decision was made moot by the passage of the 14th Amendment, and any case subsequent to the 14th Amendment would of necessity take that into consideration (as did US v Wong Kim Ark which stomped all over Dred Scott v. Sandford).
In essence, the Dred Scott decision likened the United States to a country club. The founding members and their families could be members, and they could blackball the admission of others. So if those founders were all white, and they admitted only white members, then the club would stay all white.
The Dred Scott decision (erroneously) said that the founders of the United States were all white (and that there were no black citizens). It observed correctly that US naturalization law at the time said “whites only”. Therefore blacks, under no circumstances, could be citizens (members of the club) no matter what, and further that no state law could say otherwise insofar as national citizenship was concerned.
(Put on your Halloween hat for a moment) Obama denialists have resurrected from hell the unspeakable evil of the Dred Scott decision, the decision that precipitated the deaths of half a million souls in the Civil War, to unleash it upon the Union once more for the sordid purpose of sating their passion for the blood of Barack Obama, who committed the unpardonable sin of being black and having the audacity, the uppity niggardness, to be President of the United States.
it’s that time of the year, isn’t it?
“who shall wake the sleeper?”
Dr. Conspircy,
You are really trying to get your mileage out of Dred Scott. You keep arguing the race issue rather than the legal one which is based on history and which has no race, color, or religious component as written. We all know that Indians, blacks, and Chinese are U.S. citizens today. There is not need to mislead the public on that score. Stick to the real stuff.
I guess you have abandoned any hope on addressing Dr C’s arguments. I am not surprised.
I am however more surprised that you insist on following history and legal precedent as these all continue to undermine your position.
And so poor Mario zigs and zags.
Mario Apuzzo: You are really trying to get your mileage out of Dred Scott.
Indeed I am. My point is not that “Dred Scott is bad law because its conclusion is racist”; my point is that “Dred Scott is is bad law because Justice Taney falsified history and disregarded clear legal precedents (volumes of them according to Kettner) in order to arrive at the racist conclusion he wanted.” Your arguments on the natural born citizen question seem to take a page from Taney’s playbook.
But I offer a challenge to you, a dare if you would. Try that Scott v Sanford crap in a filing before a federal judge.
Dred Scott (1857), when defining a “natural born Citizen” only repeated what was already said by Vattel (1758), The Venus, 12 U.S. 8 Cranch 253 (1814) and Shanks v. Dupont, 28 U.S. 242 (1830). Also, what was said in Dred Scott, was repeated in Minor v. Happersett, 21 Wall. 162 (1874) and United States v. Wong Kim Ark, 169 U. S. 649 (1898). So what is the problem? I see you do not attack those previous and later cases for saying what they did about what a “natural born Citizen” is. I can understand why you do not because there is no racial appeal there. The Dred Scott case is perfect for you since it has the racial component included, just what you need to mislead the public about my “natural born Citizen” argument as it applied to Obama. You might fool those who do not know better or those who want to be fooled because they profit from it, but you will not fool the well-informed who truly care about America and which is growing every day.
Mario: you really should try out for SNL’s Weekend Update.
By forgetting to mention that the US v Wong Kim Ark involved the dissent by the losing side and that Minor v Happersett never validated Scott.
Venus involved a consenting minority opinion.
In Shanks “As the common law of Great Britain is the law of South Carolina, ”
Ouch
Fascinating denial though
nbc,
I like how you hide the fact that the majority in Wong Kim Ark cited Vattel and providing the definition of what is a “natural born Citizen” that is verbatim Vattel. This was the same quote given by Minor. You always talk about the dissent, but never mention the majority providing Vattel’s definition of what a “natural born Citizen” is.
nbc, just keep trying.
Not to mention that the only place Vattel is mentioned in Scott is a minority concurring opinion (opinion by Daniels). Scott doesn’t even say that de Vattel is the law either. Taney actually makes no reference to Vattel
Concurring opinions are not case law. They hold barely more weight than a dissenting opinion. Basically, they are saying, “I agree with the final outcome, but for different reasons.”
Mind showing me where this citation of Vattel is, Mario? Give me a page number on the opinion.
Give me a direct quote.
The word “Vattel” does not occur anywhere in the majority opinion. I find it odd that the majority would cite Vattel without attributing it to Vattel. So, prove me wrong. Show me exactly where this so call citation to Vattel occurs.
Here’s the opinion:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html
I just wonder whose words they were that Justice Gray quoted when he told us what a “natural born citizen” is? Were those words not Vattel’s definition of a “natural born Citizen” as also stated by Minor?
Minor never used Vattel’s definition. Are you making up facts again?
Mario, lacking any relevant information has been ‘caught’…
Once again.
Bummer.
From WKA
and
Poor Mario
And further Vattel (1758) clearly states that one parent citizen (albeit the father) makes the child a naturel.
I still have to be told how does this help Meretricious Mario’s case?
MARIO: Were those words not Vattel’s definition of a “natural born Citizen” as also stated by Minor?
No.
(SATSQ)
Mario Aupzzo: I like how you hide the fact that the majority in Wong Kim Ark cited Vattel and providing the definition of what is a “natural born Citizen” that is verbatim Vattel
Note the careful use of language. Mr. Apuzzo did not say “defined”, but rather “providing the definition”. A more faithful comment would say “provided text which I believe is the definition…”. Assuming that I have correctly surmised the citation being alluded to, it is: “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.” which itself is a citation from Minor v Happersett.
Far from using this passage to define “natural born citizen”, the passage was used for the opposite effect, to show that that court was not committed to the idea of a parental requirement. The citation above is prefaced by these words:
This as well as any shows that your purpose is to mislead rather than inform. [And I wouldn’t say that this is a “verbatum” citation from de Vattel anyway.]
Thoughts:
Believe Orly was licensed to the bar in ’02, about 6 years before she latched onto the birther cause. Haven’t read anywhere, though, how much law she practiced in that 6-year span, though my vibes are that it was pretty scant. Can anyone tell me for sure?
2. Had an old professor in a jurispurdence course in college who frequently would declare, “You don’t hire a convicted sex offender to hand out towels in girsl locker room.” Point was, no use arguing a matter that was totally obvious. Didn’t Orly figureatively do the same with Lucas Smith — hiring someone convicted of representing as genuine a fraudulent document — to verify the authenticity of another fraudulent document?
From what I’ve seen & heard, it seems that Orly’s previous “legal work” had to do with defending stuff involving problems in her own life – from defending her multiple speeding tickets to defending her sons when they got in trouble to defending charges brought up against her dental business.
I am not aware of her representing anyone outside of her immediate family or business, prior to her become Queen Bee of the Birthers.
It is possible to search cases in California by name. I’ve looked at the Orly Taitz list and G’s account pretty well sums it up.
Jerry Reed: Orly has been personally involved in about 22 lawsuits in the OC. She is a mediocre dentist, and an incompetent lawyer.
I have written how Obama being born in Kenya is physically impossible, along with Orly’s antics.
There is also speculation that she acquired her real estate license for the sole purpose of buying property for her family and thereby avoiding realtor fees.
If true, there is a pattern here.