First of all British Common Law was not beloved by all Founders, George Mason, a little obscure but a hero for some, he demanded the bill of rights and refused to sign the final document because the Constitution had not ended slavery, he said;
“The common law of England is not the common law of these States.”
So a guy who wouldn't sign the constitution vs. the guy that *wrote* it? Not a difficult choice on who would know what they were talking about.
Ask yourself, why did the Founders use the exact term 'natural-born citizen'? It seems rather specific. It wasn't Vattel. It wasn't Law of Nations. Random chance seems highly unlikely.
Easy: 'natural-born' was a specific legal term in British Common Law. With a specific meaning: those born in the allegiance to your nation. Centered exclusively on place of birth. Not parentage.
You're trying awfully hard here to come up with an alternative explanation for something that isn't particularly complicated. And the evidence is all on one side of this issue.
And from a Federalist blog, "Could a natural-born citizen perhaps be synonymous with the British term “natural-born subject”?
"It is very doubtful the framers adopted the doctrine found under the old English doctrine of allegiance to the King from birth. The British doctrine could create double allegiances, something the founders considered improper and dangerous. The American naturalization process required all males to twice renounce all allegiances with other governments and pledge their sole allegiance to this one before finally becoming a citizen".
I direct you again to Madison, in the very conversation we drew the 'place of birth' quote that you dismissed as 'too far' from the discussion. Which again bears fruit in this conversation. Allegiance follows place of birth. You have a 'right of birth' which acknowledges your allegiance follows the community you were born into. This was the assumption the founders were working on, in fact the foundation of their transition from British Subjects to American Citizens:
James Madison said:
What was the situation of the people of America when the dissolution of their allegiance took place by the declaration of independence? I conceive that every person who owed this primary allegiance to the particular community in which he was born retained his right of birth, as the member of a new community; that he was consequently absolved from the secondary allegiance he had owed to the British sovereign: If he was not a minor, he became bound by his own act as a member of the society who separated with him from a submission to a foreign country.
Article 1, Section 2, Clause 2: James Madison, House of Representatives
This is why the founders put such an emphasis on allegiance following *location*.
As it was their legal and philosophical basis for their allegiance to the new United States rather than their former British Empire. That the new Americans had allegiance to where they were born first. And why adults who wished to become US citizens and weren't born here had to jump through so many hoops. Because they didn't carry with this this first, fundamental allegiance of 'right of birth' being born into the community to which they would have natural allegiance.
Bingham is irrelevant to any originalist understanding of the meaning of the term. As he's nearly a century too late, with his comments coming in 1866. Not 1766. Bingham wasn't an itch in his grandpappy's pants when Madison and the Founders wrote the constitution.
I've replied to this post already so this is basically a P.S. I'm slightly confused, you seem to be arguing that Ted Cruz qualifies as a "natural born citizen". Yet your posts are arguing that place, (or jus soli), is the only factor we have to take into account to determine who has that citizenship status. For instance you say
"Place of birth alone defines allegiance. And it is unnecessary to investigate any other criteria" You include many lines of evidence to support this claim in your posts. All this energy expended to try to prove a person has to be born on U.S soil to be a "natural born citizen" while everybody acknowledges that Ted Cruz was born in Calgary, Canada. So how do you get from here to there? You tried to use the 1790 Naturalization Act but that led nowhere because the 1790 Act was reversed by the 1795 Act. And even if it hadn't been there would be strong argument that a Congressional statute could not override a Constitutional Provision unless it was an amendment. That's a moot point now any way. So do you have a plan "B"? Plan "A" was a pretty weak attempt to neuter a clause which the framers thought important enough to use only once in an attempt to erect an exclusionary barrier to persons who may have through some factor of birth the potential of having or developing loyalty to a foreign power. "a strong check to the admission of Foreigners into the administration of our national Government" As John Jay put it.
Its not in question that the founder's understanding of 'natural born' at the time of the ratification of the constitution was predicated exclusively on place of birth. As Madison argued, the community you were born into and had allegiance to by 'right of birth'. Everyone from the Supreme Court to the State department recognizes that citizenship by blood is not embodied in the constitution. With the Supreme Court recognizing that those born outside the US to US parents and granted citizenship are naturalized.
The only relevant question related to Cruz's citizenship was the one I raised at the end of my post:
Did the founders intend the term 'natural born citizen' to be embodied exclusively in the constitution, or did they intend that it could be embodied in congressional statute? I argue the latter. As the founders did exactly that in the 1790 Naturalization Act, extending natural born citizenship to those born outside the US to US parents.
Did you even read my post? It's so simple to just go to Wiki and brush up on the facts. As I told you the Naturalization Act of 1795 repealed the 1790 Act. One of the major changes....
From Wikipedia, the free encyclopedia.....The United States Naturalization Act of January 29, 1795 repealed and replaced the
Naturalization Act of 1790. The 1795 Act differed from the 1790 Act by increasing the period of required residence from two to five years in the
United States, by introducing the Declaration of Intention requirement, or "first papers", which created a two-step
naturalization process, and by conferring the status of citizen and not natural born citizen.
And what relevance does that have with the fundamental issue of whether the founders intended natural born citizenship to be embodied exclusively by the constitution or if it could be something extended by congress?
As you're arguing that that for the second time, natural born status was within the realm of congress to extend or deny. The first time being the Naturalization Act of 1790, when they *did* extend natural born citizenship. As elegant a demonstration that the founders intended natural born citizenship to be within the realm of Congress to grant. As the First Congress IS the Founders.
You've insisted its a 'mistake'. But your assessment doesn't magically transform history, change the text of the 1790 Naturalization Act, nor eliminate the Founders establishing that natural born citizenship is well within the authority of Congress to extend. That all still happened.
As far as I can see you're left with what is essentially Madison's opinion, as I said yes he is important but his opinion is just that, an opinion.
We're having two different discussions. The first is on the founder's conception of natural born citizenship at the time of the ratification of the Constitutoin. And for that I've cited Madison's opinion, Wong Kim Ark, British Common Law, and the very concept of cause preceding effect in dismantling your claims regarding Vattel and the Law of Nations. And you've essentially abandoned your every claim on that front, I can only assume we now agree.
The second discussion is if the founders intended the intended natural born citizenship to be embodied exclusively by the constitution or if it could be something extended by congress. In that I haven't cited Madison as he has nothing to say on the topic.
So I'm not entirely sure where you're going with this. If you're referring to our first discussion, I've obviously cited far, far more than 'Madison's opinion'. Making your claim inaccurate. And if you're referring to the second discussion, I haven't cited Madison's opinion as evidence. Making your claims inaccurate.
Pick one.
And you brought up the Wong Kim Ark case and now seem to have conveniently forgot all about it.
The issue was examined by the U.S. Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898):
Justice Gray explained in that case:
A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.
And as I tried to explain British common law involving "natural born subjects"
(not citizens, subjects) is not transferable without interpretation to the citizens of the new republic that was The United States of America. There is a large difference between a citizen of a Republic and the "subject" of a Monarch.
That's what you've
claimed. But the quote of Wong Kim Ark you just offered simply didn't say that. Or even mention 'subjects'. And in terms of the application of the standards of British common law with the founders in their understanding of the term 'natural born citizen', its a difference with no significant distinction. As 'natural-born' subject and 'natural-born' citizen are effectively interchangeable in a discussion of the meaning of 'natural-born'.
As Madison's comments make ludicrously clear.
If it goes to SCOTUS they may side with you. If they do it will be interesting to read the opinion.
I've not only read the opinion, I've actually cited that exact passage. In this thread, I believe. As far as the founders original conception of natural born, its obvious that citizens born outside the US weren't included. Which I've stipulated......perhaps 4 times. That's actually my argument, one that I've cited Wong Kim Ark for, British Common Law for, James Madison for, what I've dismantled your claims regarding Vattel over.
The founders based natural born status on PLACE of birth. Not parentage. I don't know how much clearer I can be on the topic.
However, we're also discussing if the founders intended the natural born citizenship to be embodied in the constitution alone. Or if its something that can be extended by Congress. With the latter case obviously involving a conception of natural born citizenship AFTER the ratification of the constitution and beyond their understanding of the meaning of the term.
And as the 1790 Naturalization Act, passed in the first session of congress, signed by George Washington himself demonstrates, yes, that's what they intended.
Wong Kim Ark doesn't address this topic specifically. Given the current state of the USC on the topic, I think that the Supreme Court today would find 'citizen at birth' and 'natural born citizen' to be explicitly analogous. But this is thoroughly debatable. Our first discussion on the founders original meaning of 'natural born' and where they derived the term.....much less so.