Thursday, February 02, 2012

Wong V Ark

From the majority in Wong

“Again, in Levy v. McCartee (1832), 6 Pet. 102, 31 U. S. 112, 31 U. S. 113, 31 U. S. 115, which concerned a descent cast since the American Revolution, in the State of New York, where the statute of 11 & 12 Will. III had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8a, that,
"if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm,"
and saying that such a child "was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354."
In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said:
"The first section of the second article of the Constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth."
19 How. 60 U. S. 576. And, to this extent, no different opinion was expressed or intimated by any of the other judges.
In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
"All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution."

By which we see that the majority opinion in Wong did in fact bring up Article II section 1, and that 19th century judges tended to use “natural-born” and “native-born” interchangeably.
Further we see that the dissent also brought up Article II section 1 and made a case very close to your own:

“By the fifth clause of the first section of article two of the Constitution, it is provided that:
"No person except a natural-born citizen, or a citizen of the United States, at the time of the adoption of the Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States."
In the convention, it was, says Mr. Bancroft,
"objected that no number of years could properly prepare a foreigner for that place; but as men of other lands had spilled their blood in the cause of the United States, and had assisted at every stage of the formation of their institutions, on the seventh of September, it was unanimously settled that foreign-born residents of fourteen years who should be citizens at the time of the formation of the Constitution are eligible to the office of President."
2 Bancroft Hist. U.S. Const. 193.
Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.

...The English common law rule recognized no exception in he instance of birth during the mere temporary or accidental sojourn of the parents. As allegiance sprang from the place of birth regardless of parentage and supervened at the moment of birth, the inquiry whether the parents were permanently or only temporarily within the realm was wholly immaterial. And it is settled in England that the question of domicil is entirely distinct from that of allegiance. The one relates to the civil, and the other to the political, status. Udny v. Udny, L.R. 1 H.L.Sc. 441, 457.
But a different view as to the effect of permanent abode on nationality has been expressed in this country.
In his work on Conflict of Laws, § 48, Mr. Justice Story, treating the subject as one of public law, said:
"Persons who are born in a country are generally deemed to be citizens of that country. A reasonable qualification of the rule would seem to be that it should not apply to the children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health or curiosity, or occasional business. It would be difficult, however, to assert that, in the present state of public law, such a qualification is universally established."
Undoubtedly all persons born in a country are presumptively citizens thereof, but the presumption is not irrebuttable.
In his Lectures on Constitutional Law, p. 79, Mr. Justice Miller remarked:
"If a stranger or traveler passing through, or temporarily residing in, this country, who has not himself been naturalized and who claims to owe no allegiance to our Government, has a child born here which goes out of the country
Page 169 U. S. 719
with its father, such child is not a citizen of the United States, because it was not subject to its jurisdiction."
And to the same effect are the rulings of Mr. Secretary Frelinghuysen in the matter of Hausding, and Mr. Secretary Bayard in the matter of Greisser.
Hausding was born in the United States, went to Europe, and, desiring to return, applied to the minister of the United States for a passport, which was refused on the ground that the applicant was born of Saxon subjects temporarily in the United States. Mr. Secretary Frelinghuysen wrote to Mr. Kasson, our minister:
"You ask 'Can one born a foreign subject, but within the United States, make the option after his majority, and while still living abroad, to adopt the citizenship of his birthplace? It seems not, and that he must change his allegiance by emigration and legal process of naturalization.' Sections 1992 and 1993 of the Revised Statutes clearly show the extent of existing legislation; that the fact of birth, under circumstances implying alien subjection, establishes, of itself, no right of citizenship, and that the citizenship of a person so born is to be acquired in some legitimate manner through the operation of statute. No statute contemplates the acquisition of the declared character of an American citizen by a person not at the time within the jurisdiction of the tribunal of record which confers that character."
Greisser was born in the State of Ohio in 1867, his father being a German subject and domiciled in Germany, to which country the child returned. After quoting the act of 1866 and the Fourteenth Amendment, Mr. Secretary Bayard said:
"Richard Greisser was no doubt born in the United States, but he was on his birth 'subject to a foreign power,' and 'not subject to the jurisdiction of the United States.' He was not, therefore, under the statute and the Constitution a citizen of the United States by birth, and it is not pretended that he has any other title to citizenship."

Notice again that "native-born" and "natural-born" are used interchangeably.

The judicial significance of this dissent is, that the Supreme Court is not run like Family Feud, with the justices having no idea what the “other side” is going to opine. This dissent, raising very many points that you folks hold, was considered and rejected by a majority of the Court. While it is very possible for a dissent to be later reconsidered and elevated, as with “separate but equal” discrimination on the basis of race, it can't be said your side hasn't had its innings.

Wednesday, January 25, 2012

The More Things Change

‎"This is the generation of that great LEVIATHAN, or rather, to speak more reverently, of that mortal god to which we owe, under the immortal God, our peace and defence. For by this authority, given him by every particular man in the Commonwealth, he hath the use of so much power and strength conferred on him that, by terror thereof, he is enabled to form the wills of them all, to peace at home, and mutual aid against their enemies abroad. And in him consisteth the essence of the Commonwealth; which, to define it, is: one person, of whose acts a great multitude, by mutual covenants one with another, have made themselves every one the author, to the end he may use the strength and means of them all as he shall think expedient for their peace and common defence.

And he that carryeth this person is called sovereign, and said to have sovereign power; and every one besides, his subject." -Thomas Hobbes, "Leviathan" 1651

"If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers. -- Calvin Coolidge, 1926

"With or without this Congress, I will keep taking actions that help the economy grow. But I can do a whole lot more with your help." Barack Obama 2012

And I For One, Welcome the New God-King

The American worker, the American employer, the American investor and the American family own nothing. They earn nothing. They do not grow the economy. They merely take from others. Your own personal efforts to educate yourself, train yourself to better job performance, new products, more sales, that's just other people giving to you. You didn't do it. They did it for you. You can't claim to own what other people did for you. You can't keep everything other people give to you.

And when the government does not get its full share, when each keeps more than they need to keep, that's a taking from others because government will just have to take more from others to get its need. Abraham Lincoln was right: Government should not do more than what people can't do by themselves. And it turns out what America can't do for itself will cost about $2 trillion a year. Government needs the money to prop up the economy by investing in experiments that won't work. Government needs to create penalties and rewards for "market-based" programs that move us in the direction government wants to go. Solyndra was GOOD. FannieMae/FreddieMac is GOOD. We need more of it.

You punch the clock every day to support government, and through government, the economy. You don't get to have an economy without government. Government knows that and won't forget it. Government can tell what you need and what you don't need. Government can give you what you need and don't have. Government can tell what jobs and companies need to die, and government can tell what jobs and companies need to be invented. Government can tell what jobs should be available to citizens and what jobs need to be assigned to illegal aliens.

And when we say "government" we mean Barack Hussein Obama. His personal preferences have the authority of God. No man, no company, no industry, no state, no Congress has any right to tell Barack Hussein Obama he can't spend money where it needs to be spent, or can't kill an industry whose time is over. Barack Obama's favor shall raise shining cities from bare ground and his wrath shall make blighted wilderness of orchards and factories. Thronging multitudes shall move or stay at his gesture. His wisdom is greater, his will is grander than all the three hundred millions scurrying at his feet. Cause they're so stupid they think they did it for themselves.

But let's not get ideological. It bothers the moderates.

Tuesday, January 24, 2012

State of the Onion!

We'll restore our economy by backing losers and failed experiments.
None of us has anything except we taxed your parents and grandparents.
I agree with Abraham Lincoln when he said letting millionaires keep their own money is taking it from old ladies.
That's why tonight I've ordered the Navy to hire illegal aliens.
I've put more tundra up for drilling permits I won't grant.
Our troops are coming home and tonight I call dibs on the savings.
Honda, Ford and Toyota are hiring: I did that!
America works better when Congress gives the President permission, but when you won't I will act.
What happened in Detroit can happen everywhere!!!

Wednesday, January 18, 2012

Oh THIS blog!

Well! It let me back in instead of telling me the site was for sale!

Will have to cram this full of thoughts.