Hollister Files Notice of Appeal to DC Circuit; Other “Natural Born Citizen” Interpretations
Yesterday, Gregory Hollister, Plaintiff in Hollister v. Soetoro, had appealed his case to the United States Court of Appeals for the District of Columbia Circuit.
FreeRepublic.com shows the current docket info:
03/17/2009 US CIVIL CASE docketed. [09-5080]
03/17/2009 NOTICE OF APPEAL filed [1170878] by Mr. Gregory S. Hollister of decision of U.S. District Court. [09-5080]
03/18/2009 Open Document CLERK’S ORDER filed [1170902] directing party to file initial submissions: APPELLANT docketing statement due 04/17/2009. APPELLANT certificate as to parties, etc. due 04/17/2009. APPELLANT statement of issues due 04/17/2009. APPELLANT underlying decision due 04/17/2009. APPELLANT deferred appendix statement due 04/17/2009. APPELLANT notice of appearance due 04/17/2009. APPELLANT transcript status report due 04/17/2009. APPELLANT procedural motions due 04/17/2009. APPELLANT dispositive motions due 05/04/2009; directing party to file initial submissions: APPELLEE certificate as to parties, etc. due 04/17/2009. APPELLEE entry of appearance due 04/17/2009. APPELLEE procedural motions due 04/17/2009. APPELLEE dispositive motions due 05/04/2009 [09-5080]
Therefore, key dates for the appeal are April 17 and May 4, 2009.
A current listing of eligibility lawsuits can be found here.
What follows are further opinions from friends of this blog…
The blogger at RationalLiberty provides an interesting and rather thorough viewpoint on “The Illegitimate President.” Here’s a part from the beginning of the posting:
At the time of the adoption of our Constitution, there was only one well-known definition of natural-born citizen that was also consistent with the principles of a free society and a republican government. This definition was a result of several generations of natural law theory and international scholarship concerning the rights of man and the legitimate powers of government. The man who wrote this definition was one of the most respected and well-known authorities on national law during the creation of our federal government. His name was Emerich de Vattel and his work was The Law of Nations – a work that is one of the most quoted treatises by American legal authorities concerning national law.
According to Vattel, natural-born citizens are “those born in the country, of parents who are citizens.” This meaning has been reiterated by other government authorities, including the author of the 14th Amendment to our Constitution, Representative John Bingham, and the Supreme Court in the case Minor v. Happersett.
Also, here’s a similar viewpoint from another concerned citizen:
Under the same reasoning of the SCOTUS in FONG, the SCOTUS will consider Vattel’s Law of Nations, as well as other learned works, to determine the meaning of “natural born citizen” as the founding fathers intended it to mean within Article II of the Constitution of the United States. If they want, they may even consider “Eminent English judges, sitting in the Judicial Committee of the Privy Council”.
FONG YUE TING v. UNITED STATES. WONG QUAN V. UNITED STATES. LEE JOE V. UNITED STATES., 13 S. Ct. 1016, 149 U.S. 698 (U.S. 05/15/1893)
[1] SUPREME COURT OF THE UNITED STATES
[18] The right of a nation to expel or deport foreigners, who have not been naturalized or taken any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country.[19] This is clearly affirmed in dispatches referred to by the court in Chae Chan Ping’s case. In 1856, Mr. Marcy wrote: “Every society possesses the undoubted right to determine who shall compose its members, and it is exercised by all nations, both in peace and war. A memorable example of the exercise of this power in time of peace was the passage of the alien law of the United States in the year 1798.” In 1869, Mr. Fish wrote: “The control of the people within its limits, and the right to expel from its territory persons who and dangerous to the peace of the State, are too clearly within the essential attributes of sovereignty to be seriously contested.” Wharton’s International Law Digest, § 206; 130 U.S. 607.
[20] The statements of leading commentators on the law of nations are to the same effect.[21] Vattel says: ”Every nation has the right to refuse to admit a foreigner into the country, when he cannot enter without putting the nation in evident danger, or doing it a manifest injury. What it owes to itself, the care of its own safety, gives it this right; and in virtue of its natural liberty, it belongs to the nation to judge whether its circumstances will or will not justify the admission of the foreigner.” “Thus, also, it has a right to send them elsewhere, if it has just cause to fear that they will corrupt the manners of the citizens; that they will create religious disturbances, or occasion any other disorder, contrary to the public safety. In a word, it has a right, and is even obliged, in this respect, to follow the rules which prudence dictates.” Vattel’s Law of Nations, lib. 1, c. 19, §§ 230, 231.
[22] Ortolan says: ”The government of each state has always the right to compel foreigners who are found within its territory to go away, by having them taken to the frontier. This right is based on the fact that, the foreigner not making part of the nation, his individual reception into the territory is matter of pure permission, of simple tolerance, and creates no obligation. The exercise of this right may be subjected, doubtless, to certain forms by the domestic laws of each country; but the right exists none the less, universally recognized and put in force. In France, no special form is now prescribed in this matter; the exercise of this right of expulsion is wholly left to the executive power.” Ortolan, Diplomatie de la Mer, lib. 2, c. 14, (4th ed.) p. 297.
[23] Phillimore says: ”It is a received maxim of international law, that the government of a state may prohibit the entrance of strangers into the country, and may therefore regulate the conditions under which they shall be allowed to remain in it, or may require any compel their departure from it.” 1 Phillimore’s International Law, (3d ed.) c. 10, § 220.
[24] Bar says: ”Banishment and extradition must not be confounded. The former is simply a question of expediency and humanity, since no state is bound to receive all foreigners, although, perhaps, to exclude all would be to say good-bye to the international union of all civilized states; and although in some states, such as England, strangers can only be expelled by means of special acts of the legislative power, no state has renounced its right to expel them, as is shown by the alien bills which the government of England has at times used to invest itself with the right of expulsion.” “Banishment is regulated by rules of expediency and humanity, and is a matter for the police of the state. No doubt the police can apprehend any foreigner who refuses to quit the country in spite of authoritative orders to do so, and convey him to the frontier.” Bar’s International Law, (Gillespie’s ed. 1883) 708 note, 711.[25] In the passages just quoted from Gillespie’s translation of Bar, “banishment” is evidently used in the sense of expulsion or deportation by the political authority on the ground of expediency, and not in the sense of transportation or exile by way of punishment for crime. Strictly speaking, “transportation,” “extradition” and “deportation,” although each has the effect of removing a person from the country, are different things, and have different purposes. “Transportation” is by way of punishment of one convicted of an offence against the laws of the country. “Extradition” is the surrender to another country of one accused of an offence against its laws, there to be tried, and, if found guilty, punished. “Deportation” is the removal of an alien out of the country, simply because his presence is deemed inconsistent with the public welfare, and without any punishment being imposed or contemplated, either under the laws of the country out of which he is sent, or under those of the country to which he is taken.
[26] In England, the only question that has ever been made in regard to the power to expel aliens has been whether it could be exercised by the King without the consent of Parliament. It was formerly exercised by the King, but in later times by Parliament, which passed several acts on the subject between 1793 and 1848. 2 Inst. 57; 1 Chalmers Opinions, 26; 1 Bl. Com. 260; Chitty on the Prerogative, 49; 1 Phillimore, c. 10, § 220 and note; 30 Parl. Hist. 157, 167, 188, 217, 229; 34 Hansard Parl. Deb. (1st series) 441, 445, 471, 1065-1071; 6 Law Quart. Rev. 27.
[27] Eminent English judges, sitting in the Judicial Committee of the Privy Council, have gone very far in supporting the exclusion or expulsion, by the executive authority of a colony, of aliens having no absolute right to enter its territory or to remain therein.
Clearly, viewpoints will continue to be bandied about until such time as either the Legislative, Executive and/or Judicial branches of our constitutional republic comes up with a definitive answer.
-Phil
31 responses to Hollister Files Notice of Appeal to DC Circuit; Other “Natural Born Citizen” Interpretations
Uh, Phil, you want to clue us in on why you’ve posted a comment about a case based on the Chinese Exclusion Act?
Wow. Given the “legal” argument presented above, I think it is most appropriate to post this:
http://rationalwiki.com/wiki/index.php?title=Pseudolaw
Oh no. Not de Vattel again.
The only way to make the de Vattel argument is to completely ignore well established history of the United States.
Yes. And that well-known definition came from the English common law which prevailed not only during the colonial period, but also in the states after independence. It did not come from de Vattel.
It’s important to mention the states here because that is where one’s citizenship originated. Since Minor v. Happersett was mentioned, we can use that as a convenient source on this matter.
That’s correct. The Constitution did not in terms prescribe who should be citizens of the United States, yet there were citizens of the United States just the same. This is because citizenship originated in the states, and you were only a citizen of the United States by virtue of being a citizen of one of the several states.
To understand what constituted a “natural born” citizen of a state, one must understand what law governed citizenship in the states. And that law was the common law of England.
All of the states after independence adopted what are called “reception statutes.” What these statutes stated was that the laws which existed in that state when it was a colony were to continue to be the laws of the state after independence, until such time as they were modified by a state’s constitution or legislative statute.
Here is an example of a reception statute as codified in Article XXXV of New York’s constitution of 1777:
Therefore the well-known definition of “natural born citizen” would be the same definition which made one a “natural born subject” during the colonial period. That being one who is born in the United States, regardless of the citizenship of their parents.
This is made quite clear by Blackstone’s comparison of the English law versus that of the French:
Moving on…
First, I’m really tired of people bringing up Bingham in this context, saying he was the author of the Fourteenth Amendment, when Bingham did NOT author the citizenship clause of the Fourteenth Amendment nor did he ever comment on the citizenship clause of the Fourteenth Amendment.
Second, what Bingham was reiterating, when he was referring to the citizenship clause of the Civil Rights Act of 1866, was the English common law.
Bingham stated that the citizenship clause of the Civil Rights Act of 1866 was:
Others have misinterpreted “parents not owing allegiance to any foreign sovereignty” to mean both parents must be citizens. But it comes straight out of the English common law.
What is meant by allegiance? Let’s turn to Blackstone:
This very same concept is reiterated in Minor v. Happersett:
It’s important to note that allegiance is owed even by the alien who may only be here temporarily, and for as long as they reside in the United States.
Again from Blackstone:
So as long as you’re in the territory of the United States, as far as the United States is concerned, which is the only concern to be considered, your sole allegiance is to the United States until such time as you leave the territory of the United States.
So who would be parents not owing allegiance to the United States?
Again, we need to go no further than to examine the English common law. And the answer here is one who is residing in the United States who is an ambassador or other foreign diplomat, as such persons, as per Blackstone, “owes not even a local allegiance to the prince to whom he is sent.”
Without Bingham’s “parents not owing allegiance to any foreign sovereignty” qualification, then children born to ambassadors and other foreign diplomats residing in the United States would be considered citizens of the United States, something which had never been the case in our country’s history, nor even during the colonial period.
Everything is perfectly in keeping with English common law. And in order to make the de Vattel theory fly, one must completely ignore well established history.
And finally:
This is an absolutely incredible statement.
Why?
Because the Supreme Court in Fong says absolutely NOTHING about the meaning of “natural born citizen.” NOTHING.
Fong has to do with “The right of a nation to expel or deport foreigners.”
We’re to believe that a case having nothing to do with citizenship, natural born or otherwise, determines the meaning of “natural born citizen” simply because de Vattel was mentioned in the decision?
Again, incredible.
k
Oh yeah, and if there’s any doubt that it was understood that it was English common law which formed the basis of citizenship, here is one of Bingham’s fellow Represenatives (Rep. Wilson) speaking on the same citizenship clause of the Civil Rights Act of 1866:
k
THE ATTORNEY’S SHOULD CHECK OUT ROBERTSON’S LEGAL OATH’S
THE JUDGE THAT SWORE HIM IN (PENN)HAS NOT PRODUCED HIS:
http://www.supremelaw.org/rsrc/commissions/penn.john/nad.missing.credentials.htm
SUBJECT: missing credentials
Greetings John Garrett Penn:
Please be advised that a proper request submitted under the Freedom of Information Act (“FOIA”) has resulted in a determination that the following requisite credentials for you cannot be found or exhibited by the legal custodians of those records:
(1) Appointment Affidavit
As of October 1, 2004 A.D., a proper SUBPOENA IN A CIVIL CASE was overdue for your Oath Office and Appointment Affidavit.
For your convenience, we have attached pertinent documentation.
Formal demand is hereby made of you to produce all missing credentials as itemized above no later than 5:00 p.m. on Friday, March 2, 2007 A.D. Beyond that reasonable deadline, your silence will activate estoppel pursuant to Carmine v. Bowen, and it will also constitute fraud pursuant to U.S. v. Tweel.
Although it appears, at first glance, that James Robertson
dba U.S. District Judge in the District of Columbia,
has all four (4) requisite credentials:
http://www.supremelaw.org/rsrc/commissions/evidence.folders.2004-03-16.htm#DDC
http://www.supremelaw.org/rsrc/commissions/robertson.james/
… nevertheless, both his APPOINTMENT AFFIDAVITS and
OATH OF OFFICE were evidently witnessed and co-signed
by John Garrett Penn dba Chief Judge of the
U.S. District Court for the District of Columbia:
http://www.supremelaw.org/rsrc/commissions/robertson.james/affidavit.gif
http://www.supremelaw.org/rsrc/commissions/robertson.james/oath.gif
Please note that the APPOINTMENT AFFIDAVIT states clearly,
at the bottom:
“The oath of office must be administered by a person
specified in 5 U.S.C. 2903.”
Here’s that statute:
http://www4.law.cornell.edu/uscode/5/2903.html
Let’s see if John Garrett Penn has all four (4) requisite credentials:
http://www.supremelaw.org/rsrc/commissions/penn.john/
NOTE:
http://www.supremelaw.org/rsrc/commissions/penn.john/nad.missing.credentials.htm
Oops! John Garrett Penn turned up withOUT the
APPOINTMENT AFFIDAVIT required by 5 U.S.C. 3331:
http://www4.law.cornell.edu/uscode/5/3331.html
Accordingly, all his acts are void. See authorities on that point here:
http://www.supremelaw.org/rsrc/commissions.htm
Without taking the oath prescribed by law,
one cannot become a judge either de jure or de facto, and
such an individual is without authority to act and
his acts as such are void until he has taken the prescribed oath.
[French v. State, 572 S.W.2d 934]
[Brown v. State, 238 S.W.2d 787]
Conclusion: James Robertson does not have a valid
APPOINTMENT AFFIDAVIT, because the one produced
for him by the U.S. Department of Justice evidently
violates 5 U.S.C. 2903, due to John Garrett Penn’s
missing APPOINTMENT AFFIDAVIT.
Sincerely yours,
/s/ Paul Andrew Mitchell, B.A., M.S.
Private Attorney General, 18 U.S.C. 1964(a)
http://www.supremelaw.org/decs/agency/private.attorney.general.htm
Criminal Investigator and Federal Witness: 18 U.S.C. 1510, 1512-13
http://www.supremelaw.org/reading.list.htm
http://www.supremelaw.org/index.htm (Home Page)
http://www.supremelaw.org/support.policy.htm (Support Policy)
http://www.supremelaw.org/guidelines.htm (Client Guidelines)
http://www.supremelaw.org/support.guidelines.htm (Policy + Guidelines)
THANK’S TO PAUL MITCHELL…….. DANIEL SMITH,NY
EVERY ORDER TO SHOW CAUSE must exhibit
both the Clerk’s signature and the Court’s seal: 28 USC 1691:
Standing Case Law under 28 U.S.C. 1691:
court process requires court’s seal and clerk’s signature
http://www.supremelaw.org/stat/62/28usc1691.case.law.2.htm
http://www4.law.cornell.edu/uscode/28/1691.html
http://www.supremelaw.org/stat/62/
In Peaslee v. Haberstro, 15 Blatchf. 472, Fed.Cas. No. 10,884, the summons was set aside because not under the seal of court or signature of clerk. … To my mind, the word “process,” as used in Rev. St. § 911, means an order of court, although it may be issued by the clerk.
Now, if the Clerks of Court don’t have credentials either,
then no ORDERS can issue from that Federal Court, PERIOD,
because no one is available to comply with 28 USC 1691.
THANK’S TO PAUL MITCHELL………. DANIEL SMITH, NY
movin’ on up
I find it EXTREMELY DIFFICULT to focus on the subject “Soetoro aka Obama” when ALL the above could easily describe the illegal alien invasion we are experiencing at this moment.
When all is said and done with respect to Soetoro/Obama, it would be an uplifting experience to have all of you, my brothers and sisters of America, fight the good fight against this invasion and its facillitators, aka Washington, aka the chamber of commerce, aka our government.
It would be a “stimulus plan” unto itself.
No more educating people who don’t want to assimilate. No more paying for “anchor babies” whose sole purpose is to keep the parents from deportation. No more paying for food stamps (unless you are an American or a LEGAL resident of this state.
California would immediately recieve a facelift, no more illegal street gangs (like there are legal street gangs, right), a fiscal shot in the arm.
I hope this is posted, as it’s not off topic. We are talking about an illegal alien, right? I just changed it from singular to plural.
GeorgetownJD,
It looks pretty self-explanatory to me, and I’m not even a lawyer.
-Phil
Practical Kat,
…and I think that many of the opposition commenters on my site are pseudolawyers as well.
-Phil
FONG is LEGAL PRECEDENT NOT PSEUDOLAW.
FONG was posted as legal precedent that the SCOTUS has consulted Vattels’ Law of Nations as an authority, and thus the SCOTUS will consider Vattels’ Law of Nations as an authority when they determine the meaning of “natural born citizen” within the meaning of Article II of the US Constitution.
FONG YUE TING v. UNITED STATES. WONG QUAN V. UNITED STATES. LEE JOE V. UNITED STATES., 13 S. Ct. 1016, 149 U.S. 698 (U.S. 05/15/1893)
[1] SUPREME COURT OF THE UNITED STATES
[21] Vattel says: ”Every nation has the right to refuse to admit a foreigner into the country, when he cannot enter without putting the nation in evident danger, or doing it a manifest injury. What it owes to itself, the care of its own safety, gives it this right; and in virtue of its natural liberty, it belongs to the nation to judge whether its circumstances will or will not justify the admission of the foreigner.” “Thus, also, it has a right to send them elsewhere, if it has just cause to fear that they will corrupt the manners of the citizens; that they will create religious disturbances, or occasion any other disorder, contrary to the public safety. In a word, it has a right, and is even obliged, in this respect, to follow the rules which prudence dictates.” Vattel’s Law of Nations, lib. 1, c. 19, §§ 230, 231
“It looks pretty self-explanatory to me, and I’m not even a lawyer.”
The case did not even involve citizenship, much less natural born citizenship. This was one of a series of cases about the power of Congress to enact race-based legislation to deport foreigners. The author of the comment has pointed to a case that quotes Vattel apparently as support for his proposition that “you see, whatever you Obamabots say, this guy was important.”
Sorry, the courts won’t buy the argument that simply because de Vattel was mentioned in a case about Chinese exclusion, having nothing to do with citizenship (natural born or otherwise), he is therefore the go-to authority on natural born citizenship. The case addressed the right of a nation to expel or deport foreigners. de Vattel was cited for the purpose of demonstrating that other nations also viewed their sovereign power as allowing the same authority to expel foreginers. de Vattel is frequently cited in cases arising from boundary disputes between states or nations where a river or stream has changed course, but that offers no support for citizenship either.
Also would mention that this case was followed by Wong, which held that a man born to Chinese foreigners, on American soil, was a citizen and therefore not subject to deportation under the Chinese Exclusion Act and Geary Act. What this demonstrates is that there is a very clear black line drawn between the treatment of citizens and that of non-citizens. de Vattel supported the treatment of foreigners; in Wong, which addressed the treatment of citizens, de Vattel was REJECTED and jus soli (as set forth in the Fourteenth Amendment) was affirmed.
GeorgetownJD,
I am familiar with the interpretation of what the concerned citizen was saying and what your interpretation of that interpretation is about. However, I may need to really spell this one out for you, as you’re being obtuse, either intentionally or no.
It is important to look at the citizenship issue from as many angles as possible — especially, in the case as cited above, where precedent has occurred — in order to come up with the best outcome that may eventually be had on the eligibility issue.
While the premise of the above case isn’t necessarily tied to the natural born citizen question, it nevertheless has some bearing on the question, again because of precedent and that dear concept known as stare decisis (I’m sure you’re familiar with that one).
-Phil
“FONG was posted as legal precedent that the SCOTUS has consulted Vattels’ Law of Nations as an authority, and thus the SCOTUS will consider Vattels’ Law of Nations as an authority when they determine the meaning of “natural born citizen” within the meaning of Article II of the US Constitution.”
Sorry, but Vattel was cited (1) for the proposition that a nation is authorized to deport foreigners, and (2) as authority to demonstrate that the Chinese Exclusion Act was consistent with the law of OTHER nations, to-wit, the nations following the Romano-Germanic (continental) law. Note that the opinion cited English authorities to support the same principle in the Commonwealth nations. Finally, Fong did not involve Article II.
Never has the court’s time been wasted on such a nonsense topic as this. Hollister will be sanctioned for this, as he rightfully should be.
Fong says no such thing.
Just because de Vattel was cited in one context does not mean de Vattel would necessarily be cited in a completely different context.
k
EVERY ORDER TO SHOW CAUSE must exhibit
both the Clerk’s signature and the Court’s seal
THE ATTORNEY’S SHOULD CHECK OUT ROBERTSON’S LEGAL OATH’S
THE JUDGE THAT SWORE HIM IN (PENN)HAS NOT PRODUCED HIS
These are methods employed (almost exclusively used by unrepresented litigants) to question the legitimacy of the court to act. They are almost never successful (other than in a rare case that would not be applicable in Hollister).
Craig Smolenski,
For what reason should Gregory Hollister be sanctioned? Because you see the eligibility issue as “nonsense?”
I suppose that would fly if we would even-handedly apply the same “nonsense” characterization to most of the cases being filed in the country.
-Phil
The problem isn’t that we don’t have a legislated definition of citizenship, it’s just that we don’t have one that’s sufficiently-restrictive to immediately exclude Barack Obama.
Somehow, I doubt that having the SCOTUS revisit the Founders’ “original intent” on the matter of Presidential eligibility would, in any event, produce the desired result. It could easily be argued that their principle concern was to prevent a British loyalist from assuming the Presidency, or that their real frame of reference was Europe’s long history of inbred “musical Monarchies” where thrones were frequently occupied by foreign-born royals with divided loyalties.
If we’re fishing for “intent,” the present Court would be hard-pressed to identify either a philosophical or a practical rationale for excluding an American-born child who — even though he spent a portion of his childhood overseas — could hardly have established the sort of deep personal and political loyalties (either British or Indonesian) the Founders had in mind.
Just my two cents. As long as we’re taking a Ouija board to Original Intent, I figured I’d point out that there’s more to “intent” than whether or not the Framers had read Vattel.
Because filing the case as an interpleader was clearly inappropriate and frivolous.
But the sanction order runs against Hemenway – the lawyer – not Hollister, the named plaintiff — as well it should. The Judge specifically directed the Rule 11 sanctions to the attorney, and lawyers are prohibited from charging off these types of sanctions to their clients — so any monetary sanctions will come out of Hemenway’s pocket, not HOllister’s.
It’s pretty easy to tell who the lawyers posting here are, and their comments are all uniformly pointing out the flaws in Donofrio’s & Berg’s lawsuits.
Anyone with legal training immediately spots the problems — its laughable really.
Of course to someone who is ignorant, it seems plausible. If I started talking gibberish using French-sounding words & throwing in a few French words here & there, I might be able to fool someone who didn’t speak the language into thinking I was really talking in French — but any French speaker would immediately know I was faking it.
That’s what Donofrio’s arguments look like — it’s filled with faux reasoning and analysis, citing to inappropriate “authority” and pulling individual authorities out of context and distorting their holdings — but he is skilled enough at putting it all together that it can seem plausible to someone without legal training and a weak understanding of early American history.
I am really getting so sick of all this Vattel nonsense. Notice none of theses lawyers cite anyone from early republic using “natural born” in Vattel’s sense or any statements from the founders citing Vattel. There doesn’t appear to be any such evidence. The best they can do is a congressman 80 years later that was contracted by another congressman who actually cited authority.
As I just stated on another thread, the phrase “natural born citizen” didn’t appear in an english translation of Law of Nations until after the constitution was ratified. The original translation had the term “indigines.” What exactly is the argument that they intended Vattel’s meaning using a phrase that wasn’t in the translation of Vattel they had read?
Chief Justice Marshall cited § 212 of the original english translation of Law of Nations in 1814 in THE VENUS, RAE, MASTER, 12 US 253 (1814) as follows:
“Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says, “the citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country, of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.”
The same version of Vattel was cited by Lynch v. Clark in 1844. I wonder how many people in the early republic even knew there was a translation of Vattel that included the phrase “natural born citizen”.
Phil wrote:
“I am familiar with the interpretation of what the concerned citizen was saying and what your interpretation of that interpretation is about. However, I may need to really spell this one out for you, as you’re being obtuse, either intentionally or no.
It is important to look at the citizenship issue from as many angles as possible — especially, in the case as cited above, where precedent has occurred — in order to come up with the best outcome that may eventually be had on the eligibility issue.
While the premise of the above case isn’t necessarily tied to the natural born citizen question, it nevertheless has some bearing on the question, again because of precedent and that dear concept known as stare decisis (I’m sure you’re familiar with that one).”
It is all well and good to look at citizenship from all angles. You’ll get no disagreement from me on that. However, cases about non-citizens does nothing to enlighten what constitutes natural born citizenship. They have no precedential value to the eligibility issue. The only value these cases would have is to a deportation case, and even then, subsequent legislation has rendered them moot.
As appealing as the soundbites from the cases is to a layman, cherry picking the language of a ruling does not get you very far in court if the cited case is not on point. The slang term for this in the legal profession is a “cheat,” and it not only fails to advance your cause, it actually undermines your credibilty with the court.
Litigant: … and so, the Supreme Court has stated, in quoting Swiss legal philosopher Vattel, ”Every nation has the right to refuse to admit a foreigner into the country, when he cannot enter without putting the nation in evident danger, or doing it a manifest injury. What it owes to itself, the care of its own safety, gives it this right; and in virtue of its natural liberty, it belongs to the nation to judge whether its circumstances will or will not justify the admission of the foreigner.” Therefore …
The Court: Counsel, let me stop you right there. What am I missing? The case at hand involves a question of citizenship, am I right? Aren’t you asking this Court to determine what makes a citizen eligible under Article II?
Litigant: Yes, your Honor. My purpose …
The Court: Then why are you talking about admission of a foreigner? Help me here, because I’m not understanding where you’re going with this. I don’t see how authorities concerning the right to deport noncitizens helps your argument.
Litigant: Your Honor, my purpose is to show that the Supreme Court has relied on the writings of Emmerich de Vattel.
The Court: I understand that. The problem I’m having, and I’m asking you to help me on this, those writings were about an entirely different case than what is presented here. How do they relate to this case before this Court?
Litigant: It demonstrates that the Supreme Court will consider Vattel’s Law of Nations, as well as other learned works, to determine the meaning of “natural born citizen.”
The Court: I don’t see how you draw that conclusion. It demonstrates that Vattel was consulted to determine whether a nation can refuse admission to a foreigner. Can you point me to a case where the Supreme Court has relied on Vattel on the question of who is a natural born citizen? You said the Supreme Court “will” consider. I don’t know that this Court is that clairvoyant to predict what the Supreme Court will consider. I’m more comfortable with what it has already pronounced.
etc.
Litigant: It demonstrates that the Supreme Court will consider Vattel’s Law of Nations, as well as other learned works, to determine the meaning of “natural born citizen.”
The Court: Can you point me to a case where the Supreme Court has relied on Vattel on the question of who is a natural born citizen?
Litigant: U.S. Supreme Court THE VENUS, 12 U.S. 253 (1814)
NATIVES = INDIGENES = NATIVE CITIZENS = NATURAL BORN CITIZENS
The FONG court understood from “The Venus” court’s reference to Vattel that NATIVES, or INDIGENES, were NATIVE CITIZENS. And, a NATIVE CITIZEN is equivalent to a NATURAL BORN CITIZEN.
This CONFIRMS that the SCOTUS will consider Vattel as authority when they determine the meaning of “natural born citizen” as the framers of the Constitution intended it to mean.
The FONG court actually cited “The Venus” court’s reference to Vattel with regard to domicil, and stated the following:
“…in the case of The Venus, 8 Cranch, 253, 278: “The writers upon the law of nations distinguish between a temporary residence in a foreign country, for a special purpose, and a residence accompanied with an intention to make it a permanent place of abode. The latter is styled by Vattel, domicil, which he defines to be ‘a habitation fixed in any place, with an intention of always staying there.’ Such a person, says this author, becomes a member of the new society, at least a permanent inhabitant, and is a kind of citizen of an inferior order from the native citizens; but is, nevertheless, united and subject to the society, without participating in all its advantages. This right of domicil, he continues, is not established, unless the person makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. (Vatt. pp. 92, 93.)”
Please note that the FONG court quoted “The Venus” court’s reference to Vattel, and the FONG court stated the “domicil” is “a kind of citizen of an inferior order from the native citizens”. Yet, the specific quote from “The Venus” court that the FONG court was quoting was as follows: “These are a kind of citizens of an inferior order, and are united and subject to the society, without participating in all its advantages.”
Please note that the FONG court stated the “domicil” is “a kind of citizen of an inferior order from the native citizens” while ‘The Venus” court stated the domicil is “a kind of citizen of an inferior order…”. Thus, the FONG court, when quoting from “The Venus” court’s reference to Vattel, added the phrase “…from the native citizens” to “The Venus”court’s statement that the “domicil”is “a kind of citizen of an inferior order…”, so that the FONG court’s understanding from Vattel was that a “domicil” was “a kind of citizen of an inferior order… …from the native citizens”.
Thus, the FONG court understood from “The Venus” court’s reference to Vattel’s Law of Nations that NATIVES, or INDIGENES, were NATIVE CITIZENS, which is equivalent to NATURAL BORN CITIZENS.
Moreover, “The Venus” court stated that Vattel “is more explicit and more satisfactory on it than any other whose work has fallen into my hands”. Then, “The Venus” court quoted Vattel’s definition of citizens and stated, “the citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country, of parents who are citizens.”
Please note that the NATIVES, or INDIGENES, or NATIVE CITIZENS, which is equivalent to “NATURAL BORN CITIZENS” are “those born in the country, of parents who are citizens.” Obama does NOT meet this definition. Hence, per the SCOTUS in FONG, and per the SCOTUS in “The Venus”, Obama is NOT a NATIVE, or INDIGENE, or NATIVE CITIZEN, or NATURAL BORN CITIZEN of the United States, and thus Obama is NOT eligible to be the President of the United States.
Specifically “The Venus Court stated the following:
“Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says, ‘the citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country, of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.’ ‘The inhabitants, as distinguished from citizens, are strangers who are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state, while they reside there, and they are obliged to defendit, because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the laws, or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united and subject to the society, without participating in all its advantages.’”
FONG YUE TING v. UNITED STATES. WONG QUAN V. UNITED STATES. LEE JOE V. UNITED STATES., 13 S. Ct. 1016, 149 U.S. 698 (U.S. 05/15/1893)
[1] SUPREME COURT OF THE UNITED STATES
[96] That those who have become domiciled in a country are entitled to a more distinct and larger measure of protection than those who are simply passing through, or temporarily in it, has long been recognized by the law of nations. It was said by this court, in the case of The Venus, 8 Cranch, 253, 278: “The writers upon the law of nations distinguish between a temporary residence in a foreign country, for a special purpose, and a residence accompanied with an intention to make it a permanent place of abode. The latter is styled by Vattel, domicil, which he defines to be ‘a habitation fixed in any place, with an intention of always staying there.’ Such a person, says this author, becomes a member of the new society, at least a permanent inhabitant, and is a kind of citizen of an inferior order from the native citizens; but is, nevertheless, united and subject to the society, without participating in all its advantages. This right of domicil, he continues, is not established, unless the person makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. (Vatt. pp. 92, 93.) Grotius nowhere uses the word domicil, but he also distinguishes between those who stay in a foreign country by the necessity of their affairs, or from any other temporary cause, and those who reside there from a permanent cause. The former he denominates strangers, and the latter subjects.” The rule is thus laid down by Sir Robert Phillimore: “It has been said that these rules of law are applicable to naturalized as well as native citizens. But there is a class of persons which cannot be, strictly speaking, included under either of these denominations, namely, the class of those who have ceased to reside in their native country, and have taken up a permanent abode . . . in another. These are domiciled inhabitants; they have not put on a new citizenship through some formal made enjoined by the law of the new country. They are de facto though not de jure citizens of the country of their domicil.” 1 Phillimore, International Law, Chap. XVIII, p. 347.
U.S. Supreme Court THE VENUS, 12 U.S. 253 (1814)
As this question is not only decisive of many claims now depending before this Court, but is also of vast importance to our merchants generally, I may be excused for stating, at some length, the reasons on which my opinion is founded.
The whole system of decisions applicable to this subject, rests on the law of nations as its base. It is, therefore, of some importance to enquire how far the writers on that law consider the subjects of one power residing within the territory of another, as retaining their original character, or partaking of the character of the nation in which they reside.
Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says, ‘the citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country, of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.’ ‘The inhabitants, as distinguished from citizens, are strangers who are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state, while they reside there, and they are obliged to defendit, because it grants
[Page 12 U.S. 253, 290]
them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the laws, or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united and subject to the society, without participating in all its advantages.’ ‘The domicil is the habitation fixed in any place, with an intention of always staying there. A man does not, then, establish his domicil in any place, unless he makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. However, this declaration is no reason why, if he afterwards changes his mind, he may not remove his domicil elsewhere. In this sense, he who stops, even for a long time, in a place, for the management of his affairs, has only a simple habitation there, but has no domicil.’
A domicil, then, in the sense in which this term is used by Vattel, requires not only actual residence in a foreign country, but ‘an intention of always staying there.’ Actual residence without this intention, amounts to no more than ’simple habitation.’
Although this intention may be implied without being expressed, it ought not, I think, to be implied, to the injury of the individual, from acts entirely equivocal. If the stranger has not the power of making his residence perpetual, if circumstances, after his arrival in a country, so change, as to make his continuance there disadvantageous to himself, and his power to continue, doubtful; ‘an intention always to stay there’ ought not, I think, to be fixed upon him, in consequence of an unexplained residence previous to that change of circumstances. Mere residence, under particular circumstances, would seem to me, at most, to prove only an intention to remain so long as those circumstances continue the same, or equally advantageous. This does not give a domicil. The intention which gives a domicil is an unconditional intention ‘to stay always.’
A few items you might want to consider, Poppet:
John Garrett Penn died a year and a half ago. Google is your friend.
You might want to find something more relevant than Texas state court holdings when trying to bolster your argument about the qualifications of federal judges.
And you really ought to consider finding a more competent source than Supremelaw.org. [unneeded sarcasm]
Phil,
I have a friend who works as an immigration lawyer.
After speaking with him, I had a different perspective on the whole Obama eligibility issue.
The man-on-the-street understanding of the issue is thus:
Stanley Ann Durham was an American citizen born in the states of American Citizen parents.
Hence, Obama is an American Citizen by birth.
Conclusion:
Obama is eligible to be POTUS.
The man-in-the-street understanding of the Obama’s legal necessity to keep all documents sealed:
Obviously, he is covering up something, possibly a significant crime or ethically unlawful act.
Conclusion:
These documents should be unsealed. The matter investigated fully.
Finally:
The POTUS eligibility issue simply does not exist.
==========
I don’t agree with these minimalistic and “see-no-evil” attitudes, but that is how they see it.
Courage and Godspeed
Phil,
At some point, certainly before inauguration, had Justice Souter directed that the Obama Team produce a birth certificate? Somewhere I read or misread that. Can you straighten me out on that? I’m suspecting that in my haste I misread and then forgot where I had seen the entry? Thanks!
Jim Delaney,
I think you may have misread something, as I am unaware of any evidence that shows (1) a requirement for legal eligibility enforcement or (2) that a Supreme Court Justice asked for the now President to show any eligibility documentation.
-Phil
As is well known to any scholar of history or law, at the time of the debate over adoption of the Constitution, the founding fathers expounded on issues they considered controversial or needing great explanation in the Federalist Papers. The sections of the Federalist Papers concerning the Executive were written by Alexander Hamilton. Hamilton does not discuss the natural born citizen provision, so one could conclude the issue wasn’t important enough to warrant discussion . As to other issues concerning the Executive, Hamilton does quote to a source – Blackstone Commentaries. Hamilton never mentions Vattel. (I have both a History degree and a law degree. I can tell you Blackstone is a lot better know than Vattel.)
If we are to go to the level of speculating what the founders meant by natural born citizen based on what we are going to claim they must have read or known about – seems like there is far more evidence that they read and knew about Blackstone than Vattel. What did Blackstone say about citizenship? That it is determined by place of birth, regardless of the citizenship of the parents.
Is Blackstone dispositive? I don’t think so, but is Vattel? Of course not. People cite to Vattel and say its dispositive simply because they can interpret it (or perhaps, misinterpret it) to give the answer they want. There is no scholarship going on with the Vattel citers, just wishful thinking.
To “American”, who posted at the top of this list of comments,
(You) ought to sue those institutions that conferred those degrees you wear so proudly. You haven’t developed anything even remotely approaching a decent level of critical thinking
If the Founders/Framers found that the matter didn’t merit debate or wasn’t worthy of discussion, publicly or privately–this was because the term was so thoroughly and well understood. Natural law=law of nations —citizen parents
Blackstone spoke of natural born SUBJECTS not citizens. duh!
and even your beloved Blackstone will defer to Natural Law when it plainly speaks to the heart of the issue