Further, as our brief demonstrated, the requirement that a President be a “natural born citizen” is a fixed legal principle prescribed by the Constitution, with the purpose to insulate the office from foreign influences that would compromise the President’s sworn oath to “defend, preserve, and protect” the Constitution of the United States.
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
Obviously, the above is not without problems since the second listing would, technically, mean that nobody who was not alive at the time of the adoption of the Constitution could be president. Nevertheless, it still demonstrates the sort of latent ambiguities that can be found in the Constitution.
It does, just as some would suggest the 2d Amendment does. Assuming though that the Founders did intend for future generations to have a chance at the presidency, the argument over the meaning of natural born citizen was I believe, up until the 14th Amendment, somewhat valid, until put to rest in 1898 with Wong.
"The same principle on which such children are held by us to be citizens of the United States, and to be subject to duties to this country, applies to the children of American fathers born without the jurisdiction of the United States, and entitles the country within whose jurisdiction they are born to claim them as citizen and to subject them to duties to it."(emphasis mine)
"Such children are born to a double character: the citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen are concerned, and within the jurisdiction of that country; but the child, from the circumstances of his birth, may acquire rights and owes another fealty besides that which attaches to the father."
Opinions of the Executive Departments on Expatriation, Naturalization and Allegiance (1873) 17, 18; U.S. Foreign Relations, 1873-74, pp. 1191, 1192.
If the Court does end up accepting certiorari in a case like this, it would be very interesting to see how the various members of the Court came out on the issue. My guess, given the Roberts' Court's penchant for trying to find consensus where possible, is that the Court's holding would be unanimous and would hold that the challenge to Obama's eligibility was too late - that it should have taken place prior to the election - and that there would be a variety of concurring opinions in which some of the justices might suggest that they thought it was a justiciable issue, not a political issue.
That being said, I am still of the view that the Supreme Court will most likely punt and hold that the challenge is untimely, or else hold that the issue of eligibility as a "natural born Citizen" is a political question that the courts cannot weigh in on.
It does, just as some would suggest the 2d Amendment does. Assuming though that the Founders did intend for future generations to have a chance at the presidency, the argument over the meaning of natural born citizen was I believe, up until the 14th Amendment, somewhat valid, until put to rest in 1898 with Wong.
You keep asserting that and I continue to say NOT TRUE!
I hope that some day we get a definitive answer as to which of us is right.
Do you have an opinion on this Ranger?
I do. No matter what the law says, the Supreme Court will find him eligible somehow. To do otherwise would create a massive problem in government so they will not make him ineligible no matter the law.
Until now, the question of President Obama’s qualifications as a “natural born citizen” has been dodged by the judiciary because those challenging his eligibility had not suffered any personal injury compensable by a court–and thus lacked “legal” standing. There is no such barrier in this case because the patent attorney suffered an out-of-pocket loss of $90.00 because of the new law signed by President Obama.
Even if he is eligible, the world has suffered.
This is being very kind to the court system. How they can rule no one has suffered any personal injury compensable by a court is just wrong - in my opinion - and, as the article says, is a dodge and not a legal principle that makes it a problem. If is not eligible, the whole world has suffered a compensable loss based on his decisions like people being out of work, corruption sanctioned, apparently, at the highest level of government, using IRS to harass people, etc. Even if he is eligible, the world has suffered.
Courts can, and do, all the time. It's not a dodge. The simplest being lawsuits against municipalities that often have very short notice requirements. For example, in NYC you have to give the city notice within 90 days of your intent to sue or you lose your case, period. You are permanently barred from suing.
Even under the common law people lost out all the time. The most obvious being the common law doctrine of laches - if you sit on your hands and wait an undue amount of time before bringing suit then you lose, precisely because you waited too long and the person you want to sue reasonably relied on that delay.
This whole attempt to attack Obama's eligibility - and to throw the entire country into a fatal disarray - over all of $90 is stupidity on stilts (second cousin to nonsense on stilts). Its proponents are, to be charitable, "useful idiots" doing the work of the democrats to make the republicans and conservatives, and anyone else who can be tarred with this, look stupid and conspiratorial at the same time.
The Supreme Court won't rule against this idiot because they're too scared to, they'll rule against this idiot because the equities are so far against him it's not even funny (and so is the law, as far as I'm concerned).
Interesting take. Thanks.
After our last discussion I didn't think you wanted to reengage on this issue. But feel free to jump in. Better than a "me too" thread.
How so?
Thanks but I have nothing to add to what I have already posted elsewhere and all are free to read that at their leisure. http://www.gopbriefingroom.com/index.php/topic,146483.msg594134.html#msg594134
So if I understand you correctly, you are "Sourcery" from TOS? He has been credited with that document on some of the birther sites including one by Leo Donofrio who I'm sure you know. And it's word for word what you say you authored. BTW, Sourcery is a regular poster on TOS and has been since '98. Much of his analysis came from the work of John Greschak beginning in 2008 after the first lawsuit on this issue.
Anyway, assuming as you say, this is your work, did you and Mr. Rogers ever have any further debates? I found his counter-arguments on the 14th Amendment interesting. BTW, you answered questions well and in much detail over there. I did notice you were going to research the question of one vs two parent citizenship requirements. Did you ever do that?
I am not and never said that I was. It just happens that I completely agree with what was said and chose to post it here in response to what you said. I had a long PM exchange with the author at TOS after it was posted there and don't recall that I ever said a word on the thread there. (I happen to know and respect the author a great deal outside TOSl)
But that's not the job of the SCOTUS to resolve, rather the people and Congress.
Okay, that would explain your hesitancy at discussing it. Even though I disagreed with him on his conclusions and some of his facts, he was quite willing to explain and defend his work. I still think he got his concepts and some of legal references from Donofrio and Greschak from what I could see.
"No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President..."
This is going to be the case with SCOTUS if they decide to rule on this suit. They will reject the notion he is ineligible in way that makes it impossible to figure out what the rationale was. And I think they have to take the case since the plaintiff used the court's own words to make it a legitimate lawsuit by giving them standing.
I think all of the rejections by SCOTUS have been without comment, meaning they may or may not have believed there was standing by the petitioners. I still think they'll decline to hear it, again without comment, especially without one single court anywhere giving the issue more than the time of day. But if they do, they'll have to consider the guidance provided in Wong, which hasn't been rejected in any other case I'm aware of (including Minor). They would have to explain why Justice Gray was wrong in his analysis of the natural born citizen issue.
Without a single case agreeing with the eligibility challenge, the easiest thing they can do is to decline to hear. That's almost as effective as an actual decision on the case.
You are free to THINK anything you wish and so am I.
I tend to look at the LOGIC of the arguments presented and frankly find little of that on your side of it. The founders made a clear distinction between a mere citizen and a "natural born" citizen in the space of a single sentence.
There are not today any people who were citizens at the time or the Adoption of this Constitution still around. That being the case, any person who wishes to become president today must be a "natural born" citizen in the context that the founders understood that term.
Nothing has happened since that changes that IMHO.
I completely agree with you. A citizen can achieve that through the naturalization process; a natural born citizen must be born within the jurisdiction of the US, just as it was in Britain.
When Sourcery posted his lengthy treatise on natural born citizen, one poster asked him about the Massachusetts naturalization acts, which provided citizenship to individuals who "shall be deemed, adjudged and taken to be free citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.” With some of the naturalizations, they used the term "natural born citizens". The question was, did Massachusetts use the two terms interchangeably? These naturalizations listed were done between 1785 and 1791. Sourcery didn't know the answer but said he would research it. Do you know if he did?
Can you point me to even one single mention for the words "natural born" in the Wong case? I have, thus far, not seen one.
In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
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. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.
ALL citizens have always been treated the same with regard to rights and privileges regardless of whether or not the are naturalized or natural born with the ONLY exception being the right to seek the office of president of the United States.
Sorry, I thought you said you had read the entire case. Justice Gray spends many pages going through the history of what constituted a natural born subject and how the US accepted British usage and meaning, while changing the word "subject" to "citizen", since the US does not have a monarchy. At one point in his opinion he cites this:
http://www.law.cornell.edu/supremecourt/text/169/649 (http://www.law.cornell.edu/supremecourt/text/169/649)
So what you are saying then is that there are different classes of "natural born citizen"? Where is that explained?
I have read it a do not disagree with it! It means COMPLETE allegiance with no possibility of some other allegiance.
NO sir! Not at all! I am saying the natural born citizens, as that term was understood at the time of our founding, were those citizens who were born within the COMPLETE jurisdiction of the United States to parents who were themselves citizens and thus not subject to any other possible jurisdiction. That would exclude any naturalized citizen period and any citizen who was not born to parents who were not citizens at the time of his birth no matter how much we like them.
No, not exactly. British law did provide for some exceptions, such as the children of aliens who were at war with England, and just as we recognize today, the children of diplomats and such.
But if you read it why did you tell me you found no reference to natural born citizen in Wong?
And if you agree with that as you just said, then you agree that a natural born citizen is one born in the US regardless of whether one or both parents are citizens. You can't agree with that and with what Sourcery wrote, as they are opposed theories.
I think all of the rejections by SCOTUS have been without comment, meaning they may or may not have believed there was standing by the petitioners. I still think they'll decline to hear it, again without comment, especially without one single court anywhere giving the issue more than the time of day. But if they do, they'll have to consider the guidance provided in Wong, which hasn't been rejected in any other case I'm aware of (including Minor). They would have to explain why Justice Gray was wrong in his analysis of the natural born citizen issue.
Without a single case agreeing with the eligibility challenge, the easiest thing they can do is to decline to hear. That's almost as effective as an actual decision on the case.
You cannot be a natural born citizen if there is ANY possibility of some other allegiance in my view. The court ruled that Wong was a citizen and never anywhere say that he was a natural born citizen eligible for the office of president of the United States.
To accept the view that you express is to accept that any tin horn jerk anywhere in the world could impregnate a woman and get her into the U.S for the birth and have that child be eligible for the presidency 35 years later.
I do no believe that is what the founders intended. I know for sure, based on the congressional arguments concerning the passage of the 14th amendment, that is not what the proponents of the citizenship clause of that amendment intended, and I do not believe that is what the members of the court in the majority on the Wong case wanted or intended!
Regardless of what any member of Congress who debated the 14th thought, Words do have a meaning, just as they do with the 2d Amendment regardless of what some of those who wrote or ratified that wording thought. And whether or not the majority of the High Court agreed with Justice Gray, they voted as they did with Gray writing the opinion. And the opinion made very clear what the meaning of natural born citizen was and is. Unless there are multiple meanings of natural born citizen, the offspring of the tin horn jerk is eligible for the presidency.
With all due respect Bigun, I do not intend to argue something you won't do yourself. You don't need to repeat thousands of words someone else wrote. Simply paraphrase what points you want to make. The first post tried to make the point that the 14th Amendment was considered to limit citizenship itself, not just natural born status. And of course, no reasonable jurist would agree with the opinion of one or two senators.Tthat's right! Because you REFUSE to see what you don't want to see.
But the second post was again trying to make the stretch that Vattel's Law of Nations was the legal authority, which Wong put to rest.
Again no reasonable jurist is going to set aside over 200 years of history because legislators may have referred to LN from time to time. The reference to Slaughter House was intended to support the theory that the 14th Amendment didn't necessarily recognize rights under the privileges and immunities clause if such weren't recognized by a state. Certainly no one believes that today...do they? Given all of the interpretations by courts relative to the 14th Amendment, I sincerely doubt any court would go back to Slaughter House for interpretation. Wong definitely set that issue aside.
I don't see where either of those posts tackle the issue of natural born status.
With all due respect Bigun, I do not intend to argue something you won't do yourself. You don't need to repeat thousands of words someone else wrote. Simply paraphrase what points you want to make. The first post tried to make the point that the 14th Amendment was considered to limit citizenship itself, not just natural born status. And of course, no reasonable jurist would agree with the opinion of one or two senators.
But the second post was again trying to make the stretch that Vattel's Law of Nations was the legal authority, which Wong put to rest.
Again no reasonable jurist is going to set aside over 200 years of history because legislators may have referred to LN from time to time. The reference to Slaughter House was intended to support the theory that the 14th Amendment didn't necessarily recognize rights under the privileges and immunities clause if such weren't recognized by a state. Certainly no one believes that today...do they? Given all of the interpretations by courts relative to the 14th Amendment, I sincerely doubt any court would go back to Slaughter House for interpretation. Wong definitely set that issue aside.
I don't see where either of those posts tackle the issue of natural born status.
And BTW: I resent entirely and completely reject the implied idea that only members of the bar can properly read and interpret the English language.
Tthat's right! Because you REFUSE to see what you don't want to see.
Oh, did I say that? If so, I certainly didn't mean it. There are numerous quotes on the subject of citizenship from legislators throughout our history...of course like today, many of them were members of the bar. But I'm sure you'll agree that it is our judicial system that interprets those laws. If we don't like the interpretation there are a number of things we can do including changing the law or if necessary, amending the Constitution.
How about you paraphrase for me how all or any of that relates to the NBC issue? I agree it relates to the subject of citizenship in general, and if you were arguing that because of the allegiance requirement Obama isn't a citizen at all, then we are likely talking at cross-purposes.
Are you trying to make the point that if you're not a citizen at all, you can't be a NBC? Because if that's what you're asserting, then we agree on that point. But then Wong put that to rest since that was the exact point rejecting most of what you put into those two very lengthy and repeated posts.
We have already established quite a record here on this subject and I am content at this point to leave it to each individual reader to decide which side of the argument he wants to be on.
I think the guy's just been jerking you around, Bigun.
You explained your position quite well a long time ago...
I think the guy's just been jerking you around, Bigun.
You explained your position quite well a long time ago...
We have already established quite a record here on this subject and I am content at this point to leave it to each individual reader to decide which side of the argument he wants to be on.
Sorry, Dan, but MAC doesn't jerk anybody around.
All that being said, the Supreme Court will never rule that Obama is ineligible because of the natural born Citizen requirement. Period. The incentive to not do so should be obvious - if conservatives think liberals are destroying the country, just wait to see what happens if they get their fondest wish and undo the last 6 years of the federal government - and the basis for doing so is robust and on point, notwithstanding that there are other opinions out there.
If Rudy loses at the Court of Appeals level the Supreme Court will simply reject the request for cert. without comment. If Rudy wins at the Court of Appeals level, the Supreme Court will either reverse without comment, or will reverse on the basis that the challenge is untimely and should have been raised, if at all, prior to the election in 2008 (or even in 2012), or on the basis that the matter is a political question that is best resolved by the states and the other two branches of the federal government.
The rest of this is nothing more than an academic discussion akin to asking how many angels can dance on the head of a pin - i.e., a child's game - so personality and emotions ought to be kept in check.
I think the guy's just been jerking you around, Bigun.Thanks Dan! I've certainly tried.
You explained your position quite well a long time ago...
Sorry DC, but I'd have to disagree on that point...
Thanks Dan! I've certainly tried.
Of course you have my friend. Some of us just can't pick up on the complexities. :thud:
Yes that is true and I'm very sorry that you find yourself in that predicament!
Yes that is true and I'm very sorry that you find yourself in that predicament!
I wouldn't be the lest bit surprised by either of those outcomes as they have already proven that they are absolute cowards when it comes to anything Obama.
It has nothing to do with cowardice and everything to do with a reasonable application of the law - just because they don't choose the argument you think best doesn't mean that their choice was false or wrong, it may simply mean that they made a different choice - judicial bravery and a keen sense of the sometimes delicate balance the Founders wrought in the Constitution. Or will you also accuse C.J. John Marshall of cowardice in Marbury v. Madison for having punted on the Court's power to dictate results after having claimed for the Court the power to be the sole and ultimate arbiter of what the Constitution meant? C.J. Marshall was the master of judicial judo and managed to wrest a victory despite having, to all appearances, caved to the political threats of the day.
You seem to have as much of a desire to destroy this country for the sake of a few quaint ideological doodads as do the hardest left of Obama's supporters.
If I understand you correctly standing up for the Constitution is lunacy which seeks to destroy the country and not standing up for the Constitution, even though that is the heart and soul of your job, is fine by you!
Forgive me for finding that an utterly Orwellian concept.
It has nothing to do with cowardice and everything to do with a reasonable application of the law - just because they don't choose the argument you think best doesn't mean that their choice was false or wrong, it may simply mean that they made a different choice - judicial bravery and a keen sense of the sometimes delicate balance the Founders wrought in the Constitution. Or will you also accuse C.J. John Marshall of cowardice in Marbury v. Madison for having punted on the Court's power to dictate results after having claimed for the Court the power to be the sole and ultimate arbiter of what the Constitution meant? C.J. Marshall was the master of judicial judo and managed to wrest a victory despite having, to all appearances, caved to the political threats of the day..
No, you didn't understand him correctly.
Those who put together those birther cases hardly had the Constitution in mind.
After all, why should this current High Court follow the precedent set by earlier courts, right?
Perhaps you could call a constitutional convention and settle the matter once and for all.
But just curious. If Ted Cruz runs in 2016, will you vote for him?
John Marshall is a very interesting man indeed (there would have been no president in the newly minted United States if he and his friend Alexander Hamilton had gotten their way as both would have preferred a king) and DEFINITELY no a coward. He brazenly, and VERY controversially in the year 1803, assigned to the court great power nowhere granted that court by the Constitution. Of course I am speaking of Judicial review- the power to overturn laws - here. Since that power was clearly not granted the court by the Constitution where did Mr. Chief Justice Marshall find it? Well... wait for it... he found it in the thing he knew best (probably better than any other man in America save St. George Tucker). He found it in {{{{{{{GULP}}}}}}}}} English Common Law!
I do not argue with that finding but surely DO wonder why some here seem to think it fine to invoke English Common Law when it suits their purpose but then completely ignore it when it doesn't as has been the case on this very thread up to now.
QuoteBut just curious. If Ted Cruz runs in 2016, will you vote for him?
Again given the state of affairs the country find itself in at present and the fact that genies are hard to get back in the bottle once released YES! Indeed I would!
If I understand you correctly standing up for the Constitution is lunacy which seeks to destroy the country and not standing up for the Constitution, even though that is the heart and soul of your job, is fine by you!
Forgive me for finding that an utterly Orwellian concept.
Again given the state of affairs the country find itself in at present and the fact that genies are hard to get back in the bottle once released YES! Indeed I would!
So you would push for a constitutional crisis because someone born here in the US having a citizen parent might not be a natural born citizen, but still vote for someone born in Canada with dual citizenship? That's why I said this isn't a constitutional issue with the birthers; it is nothing more than politics.
You don't understand me in the least; and the only one seeking to undo the Constitution is you, who persists in taking the one view - out of several equally valid views - that would destroy this country, all for what appears to be a set of cheap little ideological trinkets.
And no, I won't forgive you for falsely, and knowingly, misrepresenting my position. You're a better person than that, as you've demonstrated in most other debates.
You're also ignoring - I have to assume consciously since you seem to have read much on legal theory - that it is standard in the common law to impose time limitations, particularly in equity, after which contestable issues are no longer contestable and the answer is set.
Let's try a hypothetical. I assume that you, along with most other people, believe that African Americans are not entitled to reparations for the damages done by American slavery, correct?
Why is that?
Suppose that tomorrow somebody - Bad Person - kidnaps you and forces you into hard labor at the wrong end of a whip, or a branding iron. As a result, you suffer terribly. Because of your sudden disappearance, your family also suffers terribly; they struggle mightily but end up losing their home and your wife and kids have to go live in a shelter. Your kids end up in ghetto-level public schools. Your son drops out of high school and takes up with a gang. Your daughter becomes pregnant by a man who disappears and also drops out of school to raise the baby. Tens years later your son, finally settling down after doing 8 years in prison for aggravated assault and grand larceny, marries the woman whom he'd already gotten pregnant. They live in a double-wide mobile home in an area where there is a lot of crime and your son works as a janitor. Their son also ends up taking up with a gang and eventually ends up spending life in prison for first degree murder. Your daughter's child ends up being a junkie, living in the ghetto with a string of abusive men. She has several children, all of whom end up in foster care. One of those children herself ends up having a child - your great grandson - who never amounts to anything and spends his life doing odd jobs and living in his car.
When you're rescued, do you have the right to seek damages from Bad Person? Obviously you do.
What about your wife? Yes. Derivative claims for damages are part and parcel of personal injury law, and she has a derivative claim for the economic and emotional losses she suffered because you were taken.
What about your children? Yes. They, too, have derivative claims for economic and emotional losses.
What about your grandchildren? No. Generally speaking the causal connection between your kidnapping and their misfortune is too tenuous, represents too long a chain of inferences, for them to have a cognizable claim for damages.
In other words, by dint of time claims for damages get cut off. There is injury without recompense. It's a fact of life. It's a fact of the law.
Just as there, it is perfectly legal and logical to say that a challenge to Obama as not being a "natural born Citizen" can only be brought prior to his election as president and once he has been elected, then the discussion is over. He is presumptively a "natural born Citizen" and that presumption cannot be rebutted after the election.
I could catalog volumes and volumes of other places in which legal rights - and Constitutional rights - get cut off after certain periods of time or after the claimant has taken some other action. As a simple example, suppose Johnny lives in Texas, was born there, always lived there, has never traveled outside the state, and only deals with locals. Suppose that one day he finds out he's been sued by Billy, a life-long resident of New York, in a New York State court, for stealing computer equipment from Billy's house in Yonkers. If Johnny files a motion to dismiss for lack of personal jurisdiction, he's very likely to win and that will be the end of it. He won't have to defend against the suit. However, if he first files an answer to the complaint in which he denies the allegations, and does not at the same time file a motion to dismiss for lack of personal jurisdiction, then he will have to defend against the lawsuit and if he doesn't will suffer a default judgment that Billy can then take down to Texas and use to seize Johnny's house. In fact, if Billy's evidence includes a security camera tape that captured someone who looks like Johnny, Johnny could lose if the jury believes that's him on the tape and if they disbelieve his counter evidence about never leaving Texas.
A travesty? Hardly. That is standard issue law on personal jurisdiction.
Then there is a concept called collateral estoppel. That doctrine, essentially, cuts of relitigation of issues that have already been fully litigated. In the plain vanilla variety it prevents a plaintiff from suing the same defendant for the same thing a second time after the plaintiff has already lost once. However, it has some more exotic permutations, including one that can be termed defensive estoppel in which a person who won on an issue in one lawsuit can use that win against completely different people who sue him in completely different lawsuits, if those lawsuits are brought based on the same facts, even if these other people never had a chance to have their say in the first lawsuit. How's that for justice? You lose your day in court against somebody you think hurt you all because somebody else sued that person and lost in an entirely different case. Happens more often than you might think.
There is nothing cowardly or orwellian about applying concepts like laches, or collateral estoppel, or cutting off claims for damages because the chain of causation has become a little too long; it's how the courts keep the world from getting itself completely off track.
The same reasoning is equally applicable to deciding whether Obama is a "natural born Citizen" and cutting off a case because, for example, it was brought too late - i.e., after the election - is right down one of the sweet spots of fundamental, time-honored common law jurisprudence.
And on the substance: you have certainly done a lot of thinking on your position, for which I congratulate you, but you have not proven beyond doubt that your theory is the only theory going. There are other theories - including the ones propounded here - that are just as valid as yours. In point of fact, there is another canon of judicial decision-making that weighs against your theory and in favor of one of the others. It builds off of the ancient canon that where there are two equally valid interpretations of a statute, then that interpretation is to be applied which does the least amount of violence to the rest of the statute, or to some other relevant value - such as the continuing ability of the federal government to operate. Brought to this arena, that canon implies that where there are two competing interpretations of the term "natural born Citizen" - and there are - then that interpretation which does the least amount of violence to things - in this case, that interpretation which does not bring the entire federal government to its knees - is to be favored over the other interpretation.
If the Supreme Court were to choose one of those others over yours, you are entitled to your disappointment, but you are not entitled to accuse the Court of cowardice nor of Orwellian dissembling.
Thanks for making the point much more succinctly than I ever could.
"As heirs to the majestic constitutional history of England, the intellectual and political leaders of the new Colonies intended nothing less than to incorporate into their new government the laws and liberties of Englishmen, including the well-established right of the law-abiding citizen to keep and bear arms.
They revered English customs and law. Chief Justice Howard Taft observed that:
"[t]he Framers of our Constitution were born and brought up in the atmosphere of the common law, and thought and spoke its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them; but, when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed themselves in terms of the common law, confident that they could be shortly and easily understood."
"The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted."
You don't understand me in the least; and the only one seeking to undo the Constitution is you, who persists in taking the one view - out of several equally valid views - that would destroy this country, all for what appears to be a set of cheap little ideological trinkets.
And no, I won't forgive you for falsely, and knowingly, misrepresenting my position. You're a better person than that, as you've demonstrated in most other debates.
You're also ignoring - I have to assume consciously since you seem to have read much on legal theory - that it is standard in the common law to impose time limitations, particularly in equity, after which contestable issues are no longer contestable and the answer is set.
Let's try a hypothetical. I assume that you, along with most other people, believe that African Americans are not entitled to reparations for the damages done by American slavery, correct?
Why is that?
Suppose that tomorrow somebody - Bad Person - kidnaps you and forces you into hard labor at the wrong end of a whip, or a branding iron. As a result, you suffer terribly. Because of your sudden disappearance, your family also suffers terribly; they struggle mightily but end up losing their home and your wife and kids have to go live in a shelter. Your kids end up in ghetto-level public schools. Your son drops out of high school and takes up with a gang. Your daughter becomes pregnant by a man who disappears and also drops out of school to raise the baby. Tens years later your son, finally settling down after doing 8 years in prison for aggravated assault and grand larceny, marries the woman whom he'd already gotten pregnant. They live in a double-wide mobile home in an area where there is a lot of crime and your son works as a janitor. Their son also ends up taking up with a gang and eventually ends up spending life in prison for first degree murder. Your daughter's child ends up being a junkie, living in the ghetto with a string of abusive men. She has several children, all of whom end up in foster care. One of those children herself ends up having a child - your great grandson - who never amounts to anything and spends his life doing odd jobs and living in his car.
When you're rescued, do you have the right to seek damages from Bad Person? Obviously you do.
What about your wife? Yes. Derivative claims for damages are part and parcel of personal injury law, and she has a derivative claim for the economic and emotional losses she suffered because you were taken.
What about your children? Yes. They, too, have derivative claims for economic and emotional losses.
What about your grandchildren? No. Generally speaking the causal connection between your kidnapping and their misfortune is too tenuous, represents too long a chain of inferences, for them to have a cognizable claim for damages.
In other words, by dint of time claims for damages get cut off. There is injury without recompense. It's a fact of life. It's a fact of the law.
Just as there, it is perfectly legal and logical to say that a challenge to Obama as not being a "natural born Citizen" can only be brought prior to his election as president and once he has been elected, then the discussion is over. He is presumptively a "natural born Citizen" and that presumption cannot be rebutted after the election.
I could catalog volumes and volumes of other places in which legal rights - and Constitutional rights - get cut off after certain periods of time or after the claimant has taken some other action. As a simple example, suppose Johnny lives in Texas, was born there, always lived there, has never traveled outside the state, and only deals with locals. Suppose that one day he finds out he's been sued by Billy, a life-long resident of New York, in a New York State court, for stealing computer equipment from Billy's house in Yonkers. If Johnny files a motion to dismiss for lack of personal jurisdiction, he's very likely to win and that will be the end of it. He won't have to defend against the suit. However, if he first files an answer to the complaint in which he denies the allegations, and does not at the same time file a motion to dismiss for lack of personal jurisdiction, then he will have to defend against the lawsuit and if he doesn't will suffer a default judgment that Billy can then take down to Texas and use to seize Johnny's house. In fact, if Billy's evidence includes a security camera tape that captured someone who looks like Johnny, Johnny could lose if the jury believes that's him on the tape and if they disbelieve his counter evidence about never leaving Texas.
A travesty? Hardly. That is standard issue law on personal jurisdiction.
Then there is a concept called collateral estoppel. That doctrine, essentially, cuts of relitigation of issues that have already been fully litigated. In the plain vanilla variety it prevents a plaintiff from suing the same defendant for the same thing a second time after the plaintiff has already lost once. However, it has some more exotic permutations, including one that can be termed defensive estoppel in which a person who won on an issue in one lawsuit can use that win against completely different people who sue him in completely different lawsuits, if those lawsuits are brought based on the same facts, even if these other people never had a chance to have their say in the first lawsuit. How's that for justice? You lose your day in court against somebody you think hurt you all because somebody else sued that person and lost in an entirely different case. Happens more often than you might think.
There is nothing cowardly or orwellian about applying concepts like laches, or collateral estoppel, or cutting off claims for damages because the chain of causation has become a little too long; it's how the courts keep the world from getting itself completely off track.
The same reasoning is equally applicable to deciding whether Obama is a "natural born Citizen" and cutting off a case because, for example, it was brought too late - i.e., after the election - is right down one of the sweet spots of fundamental, time-honored common law jurisprudence.
And on the substance: you have certainly done a lot of thinking on your position, for which I congratulate you, but you have not proven beyond doubt that your theory is the only theory going. There are other theories - including the ones propounded here - that are just as valid as yours. In point of fact, there is another canon of judicial decision-making that weighs against your theory and in favor of one of the others. It builds off of the ancient canon that where there are two equally valid interpretations of a statute, then that interpretation is to be applied which does the least amount of violence to the rest of the statute, or to some other relevant value - such as the continuing ability of the federal government to operate. Brought to this arena, that canon implies that where there are two competing interpretations of the term "natural born Citizen" - and there are - then that interpretation which does the least amount of violence to things - in this case, that interpretation which does not bring the entire federal government to its knees - is to be favored over the other interpretation.
If the Supreme Court were to choose one of those others over yours, you are entitled to your disappointment, but you are not entitled to accuse the Court of cowardice nor of Orwellian dissembling.
Which is what I have been saying throughout this entire exercise! What you cannot do is go to it when it suits you and ignore it when it doesn't!
"The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted."
Huh?.... :facepalm2:
As we've both agreed, I'm slow on the uptake, but if I understand what you just said, you agree with the statement, and have been saying all along:
If so, why would the concept of natural born citizen be anything other than the British version of natural born subject?
It was patently obvious to the founders that English Common Law was NOT going to be adequate in the case of the presidency precisely because there would be no line of ascendancy and they turned to Vatell!
Why are you so doggedly determined to convince this ignorant ole country boy from East Texas that you are right, and thus every child of every illegal alien who happens to be born on U.S. soil should have the opportunity to become president of the United States one day? Why is that so damned important to you?