Natural Born Citizenship: Myths, Law of Nations; Update: Common Law Still Exists?

Prolific blogger and attorney Leo Donofrio has posted yet another fascinating opinion regarding not only natural born citizenship myths — you know, those things that we tend to presume when getting into a great debate either on this blog or other sites — but also the “law of nations” as referred in the Constitution:

Rarely, when conducting legal research does one find a historical document that is directly on point.  But even more rare is to find a document which is directly on point multiple times.  But that’s exactly what has happened this week.  A historical document which destroys every bogus point being made by Obama POTUS eligibility supporters was recently discovered by a cracker jack team of university students from UCONN.  They call themselves UNDEAD REVOLUTION.

They have been sending me good stuff for quite a while now.  A wonderful contributor to comments at this blog – Kamira – is part of that team.  This group is preparing the mother of all natural born citizen research reports based upon their unique historical document discoveries.  It will be guest blogged by them right here when it’s ready for public consumption.

But for now, and as a lead in to their work, I offer you one of their superb historical finds.  It’s an article from The American Law Reviewdated Sept./Oct. 1884.  The American Law Review was a premier legal journal –  the brain child of Supreme Court Justice Oliver Wendel Holmes.

This was not a law school publication.  It was considered to be the state of legal art which utilized the most esteemed attorneys of the period.

The article I am about to show you was published in The American Law Review, written by George D. Collins, Esq.  Attorney Collins was the Secretary of the California Bar Association.  His name was recognized nationally for cases in the federal courts and moreso due to his regular publishing of articles via The American Law review.

The article I am excited to bring you is titled:


The article provides historical opposition for every single point raised by Obama eligibility pundits and destroys all propaganda in its path.

The article is written in a clear and concise manner, easily understood by lawyers and lay persons alike.  I will now introduce each relevant issue confronted in this article and then present the article in full for your review.


MYTH #1: Chester Arthur’s British birth was known and accepted by the American people.

This article was written in Summer 1884, while Chester Arthur was stillPresident.  Since The American Law Review was such an esteemed legal publication, old Chester must have been somewhat intimidated by the report of Mr. Collins.  This is because the article makes perfectly clear that to be a natural born citizen one must have been born to a US citizen father.

Chester’s father William was not naturalized until 1843, 14 years after Chester was born.  This meant that Chester Arthur was a British subject at birth and was therefore not eligible to be President as was first reported at this blog back in December 2008.

It has been argued that Chester Arthur’s occupation of the White House set a legal precedent for Obama since both Chester and Barack were born of British fathers.  But the public – at the time Chester was running for VP and later when he became POTUS – never knew that Chester Arthur was a British subject since he successfully lied to the public about his parental heritage.

The law review article goes into great detail concerning the issue of who exactly rises to the level of natural born citizen.  It discusses law cases and legal precedent in its analysis, but it does not even mention the current President – Chester Arthur – even though Attorney Collins steadfastly denies that a person born on US soil to an alien father could be a natural born citizen.

If Attorney Collins – esteemed lawyer, Secretary of the Bar Association and nationally known legal journalist – had thought his current President at the time this article was published – Chester Arthur – was a British subject at birth, then the article would have required a discussion of that point.

But the article does not mention President Chester Arthur because Chester Arthur managed – through blatant deceit – to cover that issue up.  He successfully concealed his British birth from the American people.  This law review article is proof of that conclusion.

MYTH #2: Lynch v. Clark ( a New York State case, not federal) is legal precedent for Obama to be considered a natural born citizen.

Despite the fact that state court cases have absolutely no legal weight of authority in federal court, Obama eligibility supporters cite this case often.  Attorney Collins tears the decision to shreds and exposes its faulty conclusions.

MYTH #3: Common law states that being born on the soil – Jus Soli – makes one a “natural born subject” and therefore every person born on US soil is a “natural born citizen”.

Attorney Collins takes this on directly and establishes clearly that there is no common law in the United States.  He also explains that natural born citizens are in no way, shape or form, the same as natural born subjects.

MYTH #4: Vattell’s definition of a natural born citizen was not considered by the framers.

Attorney Collins discusses Vattell in great detail.  And Collins agrees that to be a natural born citizen one must be born on the soil of parents who were themselves citizens.  Collins quotes Vattell.

But more important is the fact that Collins makes it clear Vattell’s definition of “natural born citizen” was not actually Vattell’s definition.

This is very important.

The definition of “natural born citizen” was not created by Vattell in his treatise, “Law of Nations.”  That treatise simply discussed the established body of law known as “the law of nations”.  The definition of natural born citizen discussed in Vattell’s treatise was actually the definition established by the body of law known as “law of nations”.

Attorney Collins makes all of this quite clear in the article below.  Now please review Article 1, Section 8 of the US Constitution:

The Congress shall have power…To define and punish piracies and felonies committed on the high seas, and offenses against the Law of Nations;

The capital letters are not in reference to Vattell’s treatise, but theyare in reference to the body of law Vattell wrote about – the actual “law of nations”.  And that body of law –  according to Attorney Collins as well as Vattell – held that a “natural born citizen” was somebody with connections to the nation for having been born on the soil as well as having been born of citizen parents.  In Article 1, Section 8, we therefore have a direct recognition that the framers respected the law of nations.


This is what the framers required for the Commander In Chief.  Any child of immigrants from any nation could become President – as long as his parents became naturalized US citizens before that child was born on US soil.  In their wisdom, the framers sought two generations of US citizenship.  This discriminates against no race at all.

To be an American has nothing to do with race.  It has to do with being a person cloaked in liberty – free from monarchy, free of repression, free forever.

The natural born citizen clause does not establish a superior form of citizenship.  It does establish a national security safeguard against foreign invasion of the White House and takeover of the US Armed Forces.

It makes all the sense in the world that the person who holds the keys to the massive nuclear arsenal in our possession should be born on US soil to parents who were citizens.

If we allow persons born in the US of alien fathers to be President of the US then Kim Jong Il, Osama Bin Laden and Mahmoud Ahmadinejad are all eligible to have their direct offspring become President of the United States and Commander In Chief of our Armed Forces.

That is what you are saying if you think Obama is eligible to be President.

You can’t discriminate based on race or nationality in this country.  If a person whose father was not a US citizen at the time of his birth can become President, then it doesn’t matter what nation that person is a dual citizen of.

This is the main issue and main reason why I have dedicated so much of my time to this situation.  I am no more worried about Obama than I was about Bush or Clinton.  I see all of them as having struck horrific blows against US sovereignty.  But I am seriously worried about who comes next.  Who is being groomed as a Manchurian candidate as we speak? [emphases original]

Here is the George D. Collins article:

Are Persons Born Within the United States Ipso Facto Citizens Thereof – George D. Collins

All of the above is definitely worth a read. I don’t think that anyone can disagree with the notion of bringing more evidence to either substantiate or refute the fundamentals of the eligibility issue is a bad thing. And while I haven’t always personally commented in response to some in the opposition tha have brought up many of the above arguments, I think that it’s about time to seriously take the eligibility issue seriously.

Of course, the natural question is, “Why?”

Is it not abundantly clear that one risks employing a complete and total alien (of the terrestrial kind!) to the presidency if one does not explicitly enforce the presidential eligibility clause? Why is it considered by some to be such a bad thing to ask about such an ambitious individual’s background?

I have said a long time ago on this site that the issue is not so much Mr. Obama, per se, regarding eligibility; he’s merely the catalyst that got the research started. Rather, it is the constitutional aspect of the question that continues to intrigue me. What’s more, the fact that this clause in the Constitution hasn’t been more explored is bizarrely appalling to me; just because there is next to no actual case law specifically referring to constitutional presidential eligibility doesn’t mean it shouldn’t be pursued.

I think it’s been shown quite clearly as of late that the opposition to discovering more about the eligibility clause (does there really have to be an opposition to further studying out the Constitution? Frankly, that sounds quite crazy to me as I type it!) operates under their own standards of what’s acceptable.

Unfortunately, those standards are biased under the auspices that to question the eligibility clause is to fundamentally question who Mr. Obama is in terms of what he brings to the political table. As such, I’m sure that many opposition commenters would turn the question around and ask, thusly:

What if the President were an individual who pushed for the federal government to be constrained by the enumerated powers as defined in the Constitution, yet who is constitutionally ineligible for the presidency? Would you “birthers” be pushing just as hard to remove such a person?

My answer is a resounding “yes.” Though I would readily admit I would hate for such a scenario to occur, it doesn’t matter to what party the individual belongs — they are either eligible or they are not.

As a final thought on the above, I can only imagine that very few individuals in the press (e.g.: outside of the blogosphere) have even contemplated any of the above. Therefore, be better than them — read, contemplate and then comment. It certainly won’t hurt the situation!

Update: Criminal investigator Paul Andrew Mitchell responded to Mr. Donofrio’s posting thusly:

The “common law” is mentioned TWICE in the Seventh Amendment:

Moreover, the Seventh Amendment is the supreme Law of the Land
throughout the 50 States and D.C. and all Federal Territories, chiefly because
Congress expressly extended the Constitution into D.C. in 1871
and all Federal Territories in 1873.

And, 42 U.S.C. 1988 permits a State’s common law to decide a court case
if there is no adequate Federal remedy:

“… but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.”

Also, 28 U.S.C. 1652 authorizes importation of State laws into Federal court cases, as rules of decision:
the common law is the rule of decision in all California courts, for example:  CCC 22.2:

22.2. The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.

Also, see UCC 1-103:
concerning supplemental principles of law:

(b) Unless displaced by the particular provisions of [the Uniform Commercial Code],
the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions.

Accordingly, it is NOT correct to say that “there is no common law in the United States”
EVEN IF “United States” is limited to the federal zone and/or to the Federal government.

(Emphases original)

See the following links regarding the eligibility saga:


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129 thoughts on “Natural Born Citizenship: Myths, Law of Nations; Update: Common Law Still Exists?”

  1. Revealing Question:

    Who was the first Natural Born Citizen to become President of the United States? (Answer at the end of post.)

    Article II is plain enough, and the language free of vague or technical jargon.

    The presidential candidate MUST be a “natural born citizen, or a citizen of the United States, at the time of adoption of this Constitution.” U.S. Const. Art. II, Sec. 1, Cl. 4

    The reason for (a) natural born citizen, and (b) a citizen is that those meeting the 35 year old requirement in 1789 were all native born British subjects in the American colonies.

    Any ‘natural born citizen,’ born of U.S. citizens, had to wait until at least 1824 before meeting the 35-year old eligibility requirement. After all, there were no U.S. citizens until 1789.

    ANSWER: John Tyler, the 10th president, was the first natural born citizen president. He was born in 1790, about six months after the adoption. He was a native born citizen, born of a U.S. citizen father. All of the previous presidents were born of British subjects . . . just like Obama. (Actually, there is no proof, yet, of Obama even being native born!)

  2. David,

    I think this right here is our key point of disagreement:

    Contrast that with a “natural-born citizen” which was based on natural law theory. In this case, a “natural-born citizen” was one who was entirely subject to the laws of nature alone. There was no need for a statutory law conferring the rights of citizenship because both parents were citizens of the territory in which the child was born. There was no need for a positive law because there was no possible chance that another nation could claim such a child as its citizen. “Natural” in this case was based on extraction primarily, and then on the place of birth. Natural law theory is based on the jus sanguinis model of conferring citizenship – naturally from parent to child, where the parents have the exclusive right of conferring their citizenship unto their child, not the government.

    I’ve yet to see a convincing argument that the Founding Fathers explicitly adopted used natural law to define natural born citizen.

    As anonymous said, you may believe that Wong was wrongly decided and reasoned, but it is extremely unlikely that the Supreme Court will reverse itself on this case given the positive comments made by a current majority of Justices.

    Further, the courts, if they ever examine this question on the merits, they would adopt the definition proffered in Rhodes and Wong. There is no chance that the courts would create a constitutional crisis and nullify a presidential election when there is a valid potential reading of natural born citizen that would not retroactively declare a former president, several former candidates, and the current president ineligible for the presidency.

  3. 1 Colonial charters did not permit local laws which were “repugnant to the laws of England” and reception statutes had two limitations: they dated the adoption of the common law of England from some particular year (usually the founding of the colony), and reception statutes only received “such parts of the common law of England” as had been applied in the colony before independence.

    British Statutes in American Jurisdictions, Frederick G. McKean, Jr., University of Pennsylvania Law Review and American Law Register, Vol. 78, No. 2 (Dec., 1929):

    A very large group of states recognizes amendatory English statutes prior to the fourth year of James I [1607]; in other words, in force at the time of the landing of the first English-speaking settlers in what is now the United States. The prototype of such law was enacted by the Virginia convention of May, I776, which declared the separation from British rule, framed the first constitution of the state, and ordained that ‘the common law of England, all statutes or acts of Parliament made in aid of the common law prior to the fourth year of the reign of King James the First and which are of a general nature not local to that kingdom’ should be rules of decision.

    The limitations had two implications for colonial law: 1) English rulings and statutes which post-dated the adoption year were unavailable unless they expressly referred to America (eg British nationality statutes: no references to America); and 2) English common law in its entirety was never within the jurisdiction of the colonies and thus never applied in its entirety (“such parts“), not least because the colonial courts and lawmakers never had sovereign authority over it (again, the laws concerned with nationality); if it had been slavery would have been illegal.

    When the time came to frame the US Constitution there was no federal reception of English common law: each colony had a different adoption of English common law therefore no consensus was ever reached about what a federal implementation of English common law might be. In consequence, federal usages and statutes often departed from the common law of England, even from “such parts” as had been applied in the colonies before independence. For example, the acceptance of expatriation in early US law (then anathema in England); our more restrictive transmission of nationality to the foreign born (compared to 18th century British statutes); and the inferior naturalization available to aliens in Great Britain (with religious ineligibilities and exclusion from ANY political office) with the often similarly restricted local “naturalizations” that emerged in the several colonies, when compared to the relatively liberal early US law, are indicative of the journey the Founders made from the English common law to federal law. They had traveled beyond “such parts as together did form” colonial common law, and thus beyond reception itself, into a new era of post-Independence American law.

    Not to say there was no confusion or controversy:

    Origins of Federal Common Law: Part One, Stewart Jay, University of Pennsylvania Law Review, Vol. 133, No. 5 (Jun., 1985):

    United States v. Worrall…came to the circuit court at Philadelphia in April of 1798…Worrall’s defense counsel, Alexander J. Dallas…anticipated the government’s argument, that the crime was punishable at common law; the Constitution, Dallas reasoned, contained ‘no reference to a common-law authority…’ In response, William Rawle candidly admitted that he was supporting the indictment ‘solely at common law…’ Justice Chase interrupted Rawle’s presentation… ‘The constitution of the Union is the source of all the jurisdiction of the national government…when and how have the courts of the United States acquired a common law jurisdiction in criminal cases? Now, the United States did not bring it with them from England; the constitution does not create it; and no act of congress has assumed it… what is the common law to which we are referred? Is it the common law entire, as it exists in England; or modified as it exists in some of the states; and of the various modifications, which are we to select?

    The General Common Law and Section 34 of the Judiciary Act of 1789, William A. Fletcher, Harvard Law Review, Vol. 97, No. 7 (May, 1984):

    In the years following the passage of the Judiciary Act of I789, several difficult questions about the function of the federal judiciary remained to be answered. Two questions about the role of the common law in the federal courts were particularly important. The first question was whether the general common law was intended to be federal law (a law of the United States in its national capacity) or merely the general law of the American states (a law providing the rule of decision in cases to which it applied). The second question was whether the United States could bring criminal suits in the federal courts on the basis of the general common law of crimes, or whether federal criminal statutes were necessary to such prosecutions. Both questions were eventually answered in ways that restricted the power of the federal courts: the general common law was held not to be federal common law, and the general common law of crimes was held not to constitute a federal criminal law enforceable in federal court.

    2 According to Donofrio, Obama Jr “cannot therefore be a ‘natural born’ citizen of the US” and “is not eligible to be President of the United States because…”

    aObama Jr.[‘]s…’birth status was governed‘ by the United Kingdom.

    bObama Jr….owed allegiance to the Queen of England and United Kingdom at the time of his birth – he cannot therefore be a “natural born” citizen…

    c…dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries.

    d….a father has every legal right in the world to have the laws of his nation apply to his son…” Leo Donofrio, December 11, 2008

    e “The common law is not our national law. Our national law is the Constitution. We do not follow the common law, we follow the Constitution, …the common law, which may also bear out that Obama isn’t eligible, at the same time provides Obama with his best argument that he is eligible…” Leo Donofrio, December 1, 2008.

    What follows has been previously conveyed to Donofrio but he rejects anything which he believes undermines his case by shouting it down as “gossip” or “conspiracy theory“: he didn’t post it.

    i Section 32(2) of the 1948 British Nationality Act confines transmission of British citizenship by descent (ie the children and grandchildren of citizens not born in sovereign British territory) exclusively to legitimate children: “any reference in this Act to a child shall be construed as a reference to a legitimate child; and the expressions ‘father’, ‘ancestor’ and ‘descended’ shall be construed accordingly.”

    ii Barack Obama Sr. was lawfully married in 1957 according to the formal traditional marriage laws of Kenya, such marriages having equal status with certified, statutory marriage under the British Kenya Marriage Act 1902. The 1902 law unambiguously stipulates that any man traditionally married who married a statutory wife other than his traditional wife was a bigamist, liable to five years incarceration. This meant that Obama Sr. could only statutorily marry his traditional Kenyan wife, Kezia: he was not permitted to marry any other statutory wife. As the Marriage Act 1902 gave foreign statutory marriages equal status with local Kenyan statutory marriages, Obama Sr.’s statutory marriage in Hawaii with Ann Dunham Obama was considered bigamous by all British authorities and not legally recognized in Kenya.

    iii As Obama Sr. was bigamous under British law, British law correspondingly deemed Obama Jr. to be an illegitimate child, and as British law exclusively determined who legitimately inherited British nationality at birth, simple logic establishes that Obama Jr. was not, could never be, and never had any hope of being a British citizen by descent if born in Hawaii. Any other conclusion is illogical, wishful thinking, fanaticism, or deceitful to some end: unfortunately simple logic is apparently unable to overcome these barriers to truth in certain minds. Not least Obama Jr.’s own, judging from the bizarre claims at his website.

    iv Anyone who builds a case against Obama Jr. on the presumption that, even if he was born in Hawaii, Obama Jr. was a British citizen by descent, in terms of legal reality HAS NO CASE. To make a British citizen of Obama Jr. if he was born in Hawaii requires interpretations of BNA 1948, the British Kenya Marriage Act 1902, and the British Kenya Legitimacy Act 1931 forbidden by their explicit language and outside the realms of rational possibility. Therefore anyone who argues that Obama Jr. was a British citizen by descent even if born in Hawaii quite simply has no case, never will have a case, and is making a fool of himself if he persists in believing he has a winnable case contrary to all the evidence.

    v Now, in the article by Collins cited by Donofrio are two crucially significant passages:

    Dr Bar is equally explicit; he says: it is an almost universal rule that the citizenship of the parents determines it–that of the father where the children are lawful, and where they are bastards, that of the mother, without regard to the place of birth…

    …the same principle is affirmed by Savigny. ‘Citizenship’, says he,’indicates birth in a legal marriage where the father himself has the right of citizenship. Illegitimate children acquire by origio citizenship in the native place of the mother.

    Donofrio himself writes with regard to Collins’ citation of Vattel: “The definition of natural born citizen discussed in Vattel’s treatise was actually the definition established by the body of law known as ‘law of nations’.

    With regard to Collins’ citation of Vattel and natural born citizens in terms of the “law of nations”:

    Customary International Law as Federal Common Law, Curtis A. Bradley and Jack L. Goldsmith, Harvard Law Review, Vol. 110, No. 4 (Feb., 1997):

    Article VI [US Constitution] limits supreme federal law to those ‘Laws of the United States’ that are
    ‘made in pursuance’ of the Constitution. …the law of nations was not viewed as made by any particular sovereign source, especially not by a U.S. constitutional law-making source and especially not by federal courts. The assertion that the law of nations was part of the law of the land was likely nothing more than a mimicking of earlier statements by Blackstone, who was not, of course, referring to supreme U.S. federal law. In any event, the characterization of the law of nations as the law of the land was perfectly consistent with the law of nations’ status as general common law.

    Yet, as Collins writes, and Donofrio has earlier argued, “common law is not part of the jurisprudence of the United States.

    Furthermore, Bradley and Goldsmith write,

    In rejecting the notion of a general common law in the federal courts, the [US Supreme] Court [in 1938] explained that ‘law in the sense in which courts speak of it today does not exist without some definite authority behind it.’ [Erie v. Tompkins, SCOTUS 1938] requires federal courts to identify the sovereign source for every rule of decision. Because the appropriate ‘sovereigns’ under the U.S. Constitution are the federal government and the states, all law applied by federal courts must be either federal law or state law. After Erie, then, a federal court can no longer apply [common law] in the absence of some domestic authorization to do so…

    Given (English) common law is excluded from defining a US natural born citizen (as Donofrio readily concedes) because the common law (of England) was not received into federal law, then Vattel etc are similarly excluded from defining a natural born citizen because the common law (of nations) was also not received into federal law. Donofrio believes that the natural born eligibility requirement for the Presidency was designed to eliminate dangerous foreign associations influencing American sovereignty and policy. Where is the sovereign federal judicial or legislative instrument, as mandated by SCOTUS in 1938, supporting Donofrio’s belief that Vattel etc and the common law (of nations) must be applied to Article II(1)(5) of the Constitution? Thus far no sovereign federal authority shares Donofrio’s belief. Why? If eligibility derives from federal law, then neither ECL nor LON can apply; if eligibility derives from the Framers’ intentions, nothing has disclosed them. The internal evidence of Article II(1)(5) suggests, minimally, the requirement of birth in the US; otherwise, like Donofrio’s Grand Jury idea, it’s unenforceable.

    vi Were a sovereign federal decision to be predicated on Donofrio’s “discovery” (not least: Collins, Dr Bar, Savigny et al on illegitimacy), and we saw an apparently unconstitutional and potentially disruptive application of the common law (of nations), it would probably lead SCOTUS (ultimately) to the conclusion that Obama Jr. at birth in Hawaii (assuming this was the case) was no more governed by UK law than a natural born American, and that Obama owed no more allegiance to the Queen of England and UK at the time of his birth than a natural born American, and therefore Obama’s “birth status” was equivalent to that of a natural born American – however defined.

    vii I find it very odd that Donofrio himself does not see where his reasoning and “discovery” must eventually go. Just as curious, I also find it hard to believe that Obama Jr. has so little confidence in his ability to persuade a court of his being essentially a natural born American (assuming he really was born in Hawaii) that he would spend more than a million dollars to insure against a definitive and triumphant legal resolution of the issue. Certainly Obama doesn’t seem to have much to fear from SCOTUS.

    It seems there must be something else feared, a statute or fact, over which the judicial branch has no control.

  4. David, there’s a couple of things. To answer your question, yes, the Supreme Court can decide that a case is wrongly decided. They do that by taking a case that falls under that ruling, and ruling in the opposite direction. However, the U.S. Supreme Court very rarely actually does this. In fact, even Brown v. Board of Education didn’t technically say that Plessy v. Ferguson doctorine of “Seperate, but equal” was wrongly decided. It ruled that seperate can never be equal, and therefore Plessy v. Ferguson can never apply.

    The U.S. Supreme Court is also the only one who can do it. All other courts are bound by the case law of the previous courts.

    I wouldn’t be counting on the Supreme Court reversing itself to make your case. 6 of the current justices have written favorably on U.S. v. Wong Kim Ark. In order for you to get your case, you’d have to get 2 of those justices, plus Alito, Roberts, and Sotomayor all to join you. If the Supreme Court does take a case regarding this, I expect nothing short of a 9-0 decision upholding Blackstone as the definition of NBC.

    I would not be expecting the Supreme Court to reverse itself, especially when there’s virtually no chance that the Supreme Court will reverse itself.

  5. qwertyman,

    I’m very aware of what the Supreme Court said in the Wong Kim Ark decision. Unfortunately, that Court could not have been more wrong – and as I have stated many times before, it wasn’t just their take on the definition of citizenship that was erroneous.

    Nevertheless, Blackstone was very careful to say that “natural” allegiance was based on feudal principles. The difference between “subject” and “citizen” was not the issue here – it was the common law understanding of what was “natural” in the monarchical system. In that system, it was “natural” to be a subject of the lord or sovereign that ruled the territory of one’s birth and to owe that ruler of the territory a perpetual allegiance, regardless of the citizenship of the parents. The jus soli concept is what made one a “natural-born subject” under British law. It was wholly accepted as a feudal principle consistent with the laws of the British monarchy.

    Contrast that with a “natural-born citizen” which was based on natural law theory. In this case, a “natural-born citizen” was one who was entirely subject to the laws of nature alone. There was no need for a statutory law conferring the rights of citizenship because both parents were citizens of the territory in which the child was born. There was no need for a positive law because there was no possible chance that another nation could claim such a child as its citizen. “Natural” in this case was based on extraction primarily, and then on the place of birth. Natural law theory is based on the jus sanguinis model of conferring citizenship – naturally from parent to child, where the parents have the exclusive right of conferring their citizenship unto their child, not the government.

    It is two different interpretations of what is “natural,” not two similar interpretations of “subject” and “citizen.” The Court got it wrong in the Ark decision, and those who do not understand the two entirely opposing theories of citizenship from feudal and natural law principles get it wrong when it comes to our Constitution and the eligibility clause in question.

    But in a rare point of agreement, I do believe we may be saying the same thing about how common law was adopted. When it comes to the specific powers of our federal government, it is our Constitution and the laws adopted by our Congress that is our national law. Sure, some common law definitions have been adopted, but only those that are consistent with our form of government and our Constitution.

  6. 1LisHell,

    Common law definition from Georgetown University Law Library:

    “A system of law that is derived from judges’ decisions (which arise from the judicial branch of government), rather than statutes or constitutions (which are derived from the legislative branch of government).”

    You want me to cite “authorities” that support “my” contention that the federal government of the United States is not based on English common law?

    Here’s one “authority” – our Constitution.

    Need more supporting evidence? How about the legislative branch of our federal government that creates our national laws?

    Are you still going to try to tell me that our national laws are derived from English common law? Perhaps many of our states adopted common law concerning things like contracts or property disputes, but our federal government did not adopt it as national law. Our national law is our Constitution and the laws made in pursuance thereof. It is not based on court precedent by English judges.

  7. So, are we to understand that our Congress – as of 1994 – adopts the English “common law” definition of our statutory terms? And how does this prove that we adotped English common law as our national law? By the way…O’Connor was referring to the definition of “conspiracy.”

    I think we’re arguing past each other at this point. And I think we’re both right here. I never said that common law was “national law,” I said that common law was and is a major influence on American jurisprudence. Here’s one example from last term:

    “The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

    While we have decided an exceptionally large number of cases interpreting this provision, most of our decisions have found more guidance in the common-law ancestry of the Clause than in its brief text.

    Yeager v. United States, 129 S. Ct. 2360, 2365 (U.S. 2009)”

    The Court looks at common law to determine the application of double jeopardy. The Supreme Court and lower courts use common law principles constantly. To say that they don’t (which it doesn’t seem like you are) is foolish.
    Take a look either at CJS on common law §14 or AmJur2nd on common law §11. A Westlaw search for the principle that common law is in effect unless superseded by statute returned over 100 cases from various federal courts, even cases as recent as last year.

    Blackstone has a definition of “natural-born citizen“? The last time I checked, it was a “natural-born subject” that he defined – and it had to do with being born in the subjection of the Crown and having eternal allegiance to it. Are you claiming that United States citizens are born in subjection to the president and are eternally bound by an allegiance to such a person?

    Ooh, good point about the difference between natural born subject and natural born citizen. Let’s see what the Supreme Court has to say about this difference:
    “if, at common law, all human beings born within the ligeance of the king, and under the king’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States in all cases in which there is no express constitutional or statute declaration to the contrary.’ “Subject’ and ‘citizen’ are, in a degree, convertible terms as applied to natives; and though the term ‘citizen’ seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, ‘subjects,’ for we are equally bound by allegiance and subjection to the government and law of the land.’”, Wong at 665.
    “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.” U.S. v. Rhodes (1866)
    Every state except for Louisiana and the federal government follow common law. This has been a tradition from the founding of the Republic. In recent years, more and more we’ve been abandoning common law via statute or independent American jurisprudence, but I simply disagree with you when you say that common law is not an influence on the judiciary today. I see the difference you’re making between influence and “national law,” but the fact remains that when there is no statutory definition to turn to, a judge will first look to a common law definition of a legal term or phrase, not a civil law definition.

  8. David,
    Please define common law.

    Also, please cite any authorities (i.e. court decisions or scholarly articles) that support your contention that the United States is not a common law system.

    Gibbons v. Ogden did no such thing.

    Actually, Gibbons v. Ogden did do such a thing. See e.g. 22 U.S. 1, 49-54.

  9. HD,

    I’m still waiting for you to present the constitutional clause, or any other law, that binds all future Supreme Courts to decisions made by prior Supreme Courts.

    Or, perhaps a simple question would suffice:

    Can the Supreme Court reverse a prior Supreme Court’s opinion? How so?

  10. qwertyman,

    “[A]bsent contrary indications, Congress intends to adopt the common law definition of statutory terms”
    -U.S. v. Shabani, 513 U.S. 10 (1994)

    So, are we to understand that our Congress – as of 1994 – adopts the English “common law” definition of our statutory terms? And how does this prove that we adotped English common law as our national law? By the way…O’Connor was referring to the definition of “conspiracy.”

    “In the past two years alone, at least 50 Supreme Court cases have referred to common law in order to resolve disputes about statutory or constitutional interpretation.”

    They’ve referred to English “common law” as being our national law? And do you have any links or citations so that I can verify this?

    “Several major cases in the first years of the Republic also resorted to the common law of Britain to resolve disputes, such as Ogden v. Saunders, Gibbons v. Ogden, and literally hundreds of others.”

    Gibbons v. Ogden did no such thing. Ogden v. Saunders may have mentioned previous court cases, but only to demonstrate the rationale for certain opinions of the (then) current court. They were not cited as law and I did not see where the justices stated that the United States adopted English common law as our national law. If you have “hundreds” of similar examples, then don’t waste your time posting them.

    “Blackstone, one of the lead commentators on the common law, and the author of the generally accepted definition of natural born citizen, was cited by the Supreme Court over 45 times between 1800 and 1830.”

    Blackstone has a definition of “natural-born citizen“? The last time I checked, it was a “natural-born subject” that he defined – and it had to do with being born in the subjection of the Crown and having eternal allegiance to it. Are you claiming that United States citizens are born in subjection to the president and are eternally bound by an allegiance to such a person?

    Also, how many Supreme Court cases were heard between 1800 and 1830? And how many of those citations from Blackstone were in reference to adopting English common law as our national law? How many were simply reciting what was understood as reasonable interpretations of legal terminology and principles of law in general?

    “For you to keep arguing that British common law was not and is not a huge influence on American jurisprudence is either pure ignorance or you disagreeing for the sake of disagreeing.”

    And here we have a breakdown in reading comprehension and/or poor wording on your part.

    Are you arguing that British common law is (as in, currently) a huge influence on our laws today? If so, then yes, I certainly disagree with that and it is neither based on ignorance nor is it just for the sake of disagreeing. It is a matter of fact.

    Also, I have never stated that British common law was not a “huge influence” on our laws. Absolutely, British laws were influential on our founding generation. In fact, the Founders explicitly rejected many of them that had a “huge influence” on their lives and consequently, the new government they created.

    More to the point – which you have missed – is my statement that English common law was not and is not our national law. We may share certain terms and definitions in our law, but the British common law applies only so far as it is consistent with our form of government, our Constitution, natural reason, and justice.

    I am not saying that British common law was not “influential.” I am explicitly stating that it never was and is not now our national law. Do you notice the difference?

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