Category Archives: Analysis

An Ineligible Person Can Not Be Impeached

I.

Impeachment is a POLITICAL process, LEGAL matters are Judicial.

Impeachment is a political act of the Legislative Branch.

Conversely eligibility is a legal matter determined Judicially.

If eligibility were a political matter then there would be no set standard and the mandate of Article II § 1, cl 5 would become an arbitrary and shifting standard – a party controlling the Legislature & Executive could with impunity protect an ineligible person in the Executive. Article II § 1, cl 5 would be surplusage.

II.

Article II commands that an ineligible person shall not be President. A person who is not President can not be impeached.

Article II does not distinguish between ineligibility prior to an election or after, a person failing to meet the requirements is at all times legally disqualified.

Nothing can be added to the text, it must be taken as it is. If the Framers intended an exception they would have written one.

“No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen Years a resident within the United States.” U.S. Const. art. II, § 1, cl 5.

III.

A Judicial determination of eligibility is proper, indeed it is solely for the Judiciary to determine and for no other Branch.

IV.

The Legislature has no power to interfere with a Judicial determination of ineligibility.

There is no role for the Legislature, to allow an ineligible person to remain in Office on the premise that the Legislature has not impeached would obstruct the purpose of Article II § 1, cl 5.

V.

A Judicial determination of ineligibility is a removal from Office.

 

 

Commentary on United States v Wong Kim Ark

Congressional authority respecting citizenship extends to naturalization only.

U.S. Const. art. I, § 8, cl. 4.

To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

“Citizen,” “naturalization” and “natural born Citizen” are ALL in the Original, unamended Constitution; therefore, none can mean the same thing.

Marbury v Madison:“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.”

A citizen by statute can not be a natural born citizen.

Treaties are part of the supreme law of the land.

U.S. Const. art. VI, cl. 2.

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Gray abrogated treaties with China.

Do note that the common law of England is not included, nor are the constitution or laws of any state. (So don’t bother commenting about state statutes, rulings, etc, eg Chancellor Sandford)

Aside from abrogating treaties, Gray applies the “common law” of England. England’s common law is not the supreme law, but foreign law.

Madison letter to Washington October 18, 1787

What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution.”

Madison called the English common law “a dishonorable and illegitimate guide” in defining terms in the Constitution.

Aside from abrogating treaties and applying English common law, Gray deliberately misinterprets the jurisdiction clause of the Fourteenth Amendment.

The 14th Amendment:

Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Framers of the Fourteenth Amendment explained the jurisdiction clause:

Rep. Bingham:

The Fourteenth Amendment is “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”

Sen. Trumbull:

“‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.”

Sen. Williams:

Senator during the drafting of Amend. XIV, later as US Attorney General ruled the word “jurisdiction” under Amend. XIV “must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment.” “Political and military rights and duties do not pertain to anyone else.”

The jurisdiction clause is specifically stated to be political allegiance, not territorial bounds.

Ignoring legislative history Gray “presumes” the intent of the jurisdiction clause:

The words “in the United States, and subject to the jurisdiction thereof” in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words “within the limits and under the jurisdiction of the United States,” and the converse of the words “out of the limits and jurisdiction of the United States” as habitually used in the naturalization acts. This presumption is confirmed by the use of the word “jurisdiction” in the last clause of the same section of the Fourteenth Amendment, which forbids any State to “deny to any person within its jurisdiction the equal protection of the laws.” It is impossible to construe the words “subject to the jurisdiction thereof” in the opening sentence, as less comprehensive than the words “within its jurisdiction” in the concluding sentence of the same section; or to hold that persons “within the jurisdiction” of one of the States of the Union are not “subject to the jurisdiction of the United States.”

The Framers of the Fourteenth Amendment make clear that “subject to the jurisdiction thereof” is political and not geographic bounds, specifically stating “allegiance”. Gray ignores their intent conflating “jurisdiction” in the first sentence with the last. The first sentence confers citizenship, the last sentence applies law. These are entirely different matters, in the first instance political and in the last instance geographical.

Having misconstrued the jurisdiction clause as territorial Gray then proceeds to examine the common law of England.

To lend a sheen of legitimacy Gray cites State v. Manuel:

The term “citizen” as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people – and he who before was a “subject of the king” is now “a citizen of the State.”

State v. Manuel is an 1838 case before the North Carolina Supreme Court. The following is the first portion of the paragraph containing the cited sentence:

It has been said that before our Revolution, free persons of colour did not exercise the right of voting for members of the colonial legislature. How this may hvae been, it would be difficult at this time to ascertain. It is certain however that very few, if any, could have claimed the right of suffrage, for a reason of a very different character than the one supposed. The principle of freehold suffrage seems to have been brought over from England with the first colonists, and to have been preserved almost invariably in the colony ever afterwards. In the act of 1743, ch. 1, (Swan’s Revisal, 171,) it will be seen that a freehold of fifty acres was necessary to entitle the inhabitant of a county to vote, and by the act of 2d Sept. of 1746, ch. 1, Ibid. 223, the freeholders only of the respective towns of Edenton, Bath, Newbern and Wilmington were declared entitled to vote for members of the Colonial Legislature. The very Congress which framed our constitution, was chosen by freeholders. That constitution extended the elective franchise to every freeman who had arrived at the age of 21, and paid a public tax; and it is a matter of universal notoriety that under it, free persons without regard to colour, claimed and exercised the franchise until it was taken from free men of colour a few years since by our amended constitution. But surely the possession of political power is not essential to constitute a citizen. If it be, then women, minors, and persons who have not paid public taxes are not citizens – and free white men who have paid public taxes and arrived at full age, but hove not a freehold of fifty acres, inasmuch as they may vote for one branch and cannot vote for the other branch of our legislature, would be in an intermediate state, a sort of hybrids between citizens and not-citizens. The term “citizen” as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people – and he who before was a “subject of the king” is now “a citizen of the State.” Considering therefore the defendant as having a right to the protection of the clauses in the constitution and declaration of rights on which he relies, we proceed to the examination of the alleged repugnancy between these and the act of 1831. The 39th section of the constitution is in these words: “The person of a debtor, where there is not a strong presumption of fraud, shall not be continued in prison after delivering up bona fide all his estate, real and personal for the use of his creditors in such manner as shall be hereafter regulated by law.” ….

It is quite clear that Judge Gaston’s references to “our law” and “our constitution” are references to the statutes and Constitution of North Carolina. As North Carolina has a reception statute the cited sentence is true in North Carolina. The same can not be said for the federal government which does not incorporate common law via Constitution, reception statute, or other method. The cited sentence is inapplicable to the federal government.

Gray’s cite of Manuel to justify use of English common law is dishonest.

Gray’s use of English common law is inappropriate:

Jefferson letter to Edmund Randolph, August 18, 1799:

Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force and cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of un-given powers have been in the detail. The bank law, the treaty doctrine, the sedition act, alien act, the undertaking to change the State laws of evidence in the State courts by certain parts of the stamp act, &c. &c. have been solitary, unconsequential, timid things, in comparison with the audacious, barefaced and sweeping pretension to a system of law for the United States, without the adoption of their legislature, and so infinitively beyond their power to adopt.

Gray ignored legislative history of the Fourteenth Amendment and interpreted the intent of the jurisdiction clause territorially rather than politically ignoring the specifically stated intent of its Framers.

He arrogated to himself a system of law “infinitively beyond [his] power to adopt” and erected himself into a legislator deciding “what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States” (Madison letter to Jefferson, Jan 18, 1800).

The holding is binding on lower courts: the SINGLE question of whether Wong was a citizen of the United States by virtue of the first clause of the Fourteenth Amendment was answered in the affirmative.

The rationale when erroneous is dicta. It has little value as precedent or guidance and is not binding on lower courts.

Neither Amend. XIV nor WKA touch Art. II’s eligibility requirements.

Conflating citizen, naturalized citizen, and natural born citizen is absurd, such construction is inadmissible.

Citizenship and Naturalization – From Colonial to United States to Ark

In the beginning there where the Thirteen Colonies. The citizens of these Colonies were British subjects. These subjects may have emigrated from Great Britain, emigrated from elsewhere, or have been born in these colonies.

Upon the Declaration of Independence each of the colonies became separate independent sovereign states, and these British subjects became American Citizens.

Each of these sovereign states wrote constitutions and instituted a new frame of Government different from their colonial government.

To prevent anarchy, many states adopted portions of English common law except where it conflicted with their Constitution or laws.

Each sovereign state added new citizens by citizens giving birth and by naturalizing new citizens according to their state law.

After the Revolution those sovereign states joined in the Articles of Confederation. The Articles dealt primarily with mutual defense, amity between states, coinage, diplomatic and international issues.

Each state retained its sovereignty (Article II) and each state continued to add new citizens by birth and by naturalization under their state law.

Eventually the Constitution of the United States was adopted. State sovereignty continued to be retained by the Amendment X reservation of state powers. Notably, states ceeded to the United States their power of naturalization.

New citizens were added by citizens giving birth and by naturalizing new citizens according to United States law.

It is notable that these sovereign states have adopted two frames of government, both of which retain state sovereignty and neither of which adopt the English common law, in whole or in part.

Under the Articles of Confederation the states retained all their sovereign powers.

Under the Constitution the states ceeded all national concerns to the federal government. The Tenth Amendment makes clear that States retain only 1) those powers not delegated to the Federal government and 2) those powers not prohibited to states.

The United States is a compound republic. The Constitution defines how the sovereign states relate to each other as well as to the national government and it to them. The national government handles international affairs.

Under the Constitution there is a hierarchy of law:

• federal constitution
• treaties and acts of Congress
• State constitutions
• acts of State legislatures

This is unique and there is nothing like it found in English law.

Also:

• England does not have a written constitution
• Acts of Parliament can not be questioned
• English common law is customary domestic law, it is municipal in nature

By contrast, the United States has written constitutions and legislative acts are subject to judicial review.

The limited sovereignty of the states leaves them municipal duties and powers.

The supreme sovereignty of the federal government is national and international, not municipal.

For the reasons stated, unlike the states the Federal government does not and can not rely on English common law.

As is obvious: the common law of England is municipal in nature and ill suited to relations between sovereign states (both internal states and internationally). Relations between sovereign states is dealt with by the law of nations.

International relations are handled by the federal government. Naturalization is international by its very nature. Under the Constitution naturalization powers reside in the Federal government, not in the states, customary common law, or courts. Naturalization is controlled by legislated acts of Congress.

Let’s review the cases of citizenship and naturalization that arise prior to the Declaration of Independence and afterwards, and upon the adoption of the Constitution and afterwards:

Diagram of Native, Natural, and Naturalized Citizens during the Founding Era

Case 1

A British Subject in and Citizen of one of the Thirteen Colonies becomes, at the signing of the Declaration of Independence, an American Citizen. At the Time of Adoption, by the grandfather clause of Art. II, this American Citizen is eligible to the Office of President*

Case 2

An Alien naturalizes and becomes a British Subject in and Citizen of one of the Thirteen Colonies. Upon the signing of the Declaration of Independence, he becomes an American Citizen. At the Time of Adoption, by the grandfather clause of Art. II, this American Citizen is eligible to the Office of President*

Case 3

A British Subject in and Citizen of one of the Thirteen Colonies has a child prior to the Declaration of Independence. This child is a British Subject and a native born Citizen of the Colony. At the signing of the Declaration of Independence this British Subject becomes an American Citizen. At the Time of Adoption, by the grandfather clause of Art. II, this American Citizen is eligible to the Office of President*

Case 4

A British Subject in and Citizen of one of the Thirteen Colonies has a child after the Declaration of Independence. The parents become, at the signing of the Declaration of Independence, American Citizens. The child, born from American Citizen parents, is a natural born Citizen. This natural born American Citizen is eligible to the Office of President*

Case 5

Subsequent to the Declaration of Independence and prior to the Adoption an Alien naturalizes (under state law) and becomes a Citizen of one of the Thirteen States. At the Time of Adoption this American Citizen, by the grandfather clause of Art. II, is eligible to the Office of President*

Case 6

Subsequent to the Adoption an Alien naturalizes (under United States law) and becomes a Citizen of the United States. This Citizen is not eligible to the Office of President, they were not a Citizen at the Adoption nor are they a natural born Citizen.

Case 7

Subsequent to the Adoption an Alien has a child. The child is Alien and is not eligible to the Office of President.

* Provided:
• they are at least thirty-five years old
• have been fourteen years a resident within the United States

The Naturalization Act of 1790, et seq. specify the minor children of Aliens naturalize upon the naturalization of the parents.

These means that native born citizen is synonymous with natural born citizen.

There are two kinds of citizenship: native or natural born, and naturalized.

Subsequent to the ruling in United States v. Wong Kim Ark this is no longer true.

Broadening the “subject to the jurisdiction” clause of the 14th Amendment to include domiciled aliens which heretofore were not “subject to the jurisdiction”, the ruling created a distinction between native born citizen and natural born citizen.

This broadened interpretation of the 14th Amendment jurisdiction clause naturalized the children of certain aliens thus creating a distinction where none had existed.

Native born citizen and natural born citizen are no longer synonymous.

Early authorities that citizens born here were natural born citizens are correct. It is no longer true after Wong Kim Ark.

The United States and Mexican Claims Commission

It has for several years on various forums been repeatedly pointed out the conflicts of law created by:

º Claims that Naturalization Acts do not apply to alien parents’ US born children

º Claims that the 14th Amendment “subject to the jurisdiction thereof” clause applies to those alien children, that they are “subject to the jurisdiction” and therefore are citizens

º Claims that the Civil Rights Act of 1866 “not subject to any foreign power” clause somehow means other than what is plainly stated.

International conflicts of law may be settled by a commission.

In accord with Art. XXI of the Treaty of Guadalupe Hidalgo, to settle differences “by the arbitration of commissioners appointed on each side” [1], the United States and Mexican Claims Commission was established July 4, 1868.

The Commission consisted primarily of two commissioners, one to be appointed by the President of the United States, by and with the advice of the Senate, and the other by the President of Mexico. A third person was to act as an umpire in cases of disagreement. [2]

The commissioners were to hear “one person on each side on behalf of each government on each and every separate claim” and they were to decide “according to public law, justice, and equity” all claims laid before them.

Members of the Commission hearing the cases cited below were:

The commissioner for the United States was William Henry Wadsworth, with counsel Joseph Ashton, former Assistant Attorney-General of the United States.

The commissioner for Mexico was Francisco Palacio, also with counsel.

The umpire was Sir Edward Thornton, British minister to the United States.

Some of the more than 2000 cases heard by the Commission dealt with citizenship. Here, excerpted for space, are two such cases. Both cases are post 14th Amendment.

Thornton, umpire, April 22, 1876, Beniguo Santos Suarez v. Mexico, No. 716, convention of July 4, 1868

“The umpire is of the opinion that it is not proved that the claimant was a citizen of the United States. The ground that he is so, is his own statement that he was born at New York, together with a certificate of baptism of a child who was born at New York, Beniguo being one of the names which were given to him; but it is not proved that the child then born and baptised was one and the same person with the claimant. Nor would the mere fact of his having been born at New York be sufficient evidence of citizenship. It is clear that his parents were both aliens at the time of his birth, and it is not shown that they were naturalized or that they or the child remained in the United States. The inference is to the contrary, and the umpire believes that the child in question, even if that child was really the claimant, though born in the United States, was subject to a foreign power and cannot without further proof be considered to be a citizen of the United States” (emphasis added) [3]

Bernard J. Gautier v. Mexico, No. 958, United States and Mexican claims commission, convention of July 4, 1868

Claimant was born in Texas of French parents, and at the age of 19 years removed to Matamoras, Mexico, with his mother, a widow, where they established a commercial house. When Maximillian was sent to Mexico by Napolean III to establish an empire, a treaty was agreed upon between the two by which the so called Mexican Empire became bound to pay such claims of French subjects against Mexico as might be approved by a mixed commission. Claimant appeared before that commission… The French and Mexican mixed commission considered him entitled to French nationality, admitted his claim, and made an award in his favor for $1,000.

The commissioners, Mr. Palacio delivering the opinion, held that, as it did not appear that the parents of the claimant were naturalized during their residence in Texas, it was to be presumed that they retained their original French nationality; that the claimant, who left the United States before arriving at the age of 21 years, was entitled, according the the French code, to retain the nationality transmitted by his parents; that the laws of Mexico did not forbid such election; but that he was not entitled to renounce his French nationality and elect that of the United States, after he had abandoned that latter country to establish himself in another, and after he had made a valid act of adoption of French nationality.” (emphasis added) [4]

Had the claimant remained in the United States he would have retained the right of election, his right to renounce his French nationality or elect that of the United States.

These cases illustrate:

º Naturalization Acts do apply to alien parents’ US born children

º The 14th Amendment “subject to the jurisdiction thereof” clause does not produce citizens from alien parents’ US born children, the children are themselves alien

º The Civil Rights Act of 1866 “not subject to any foreign power” clause means what is plainly stated

Finally, it is my great pleasure to point out the case of Christian Gatter [5].

“The claimant was brought to the United States while a minor by his father from Germany. He claimed citizenship though the naturalization of his father, but did not prove the naturalization.

The umpire, observing that there was no proof of the naturalization of the father, said: ‘The fact that he (the father) voted or even held office in the State of Illinois is no proof that he was a citizen of the United States. And if he was not, neither was his son, who does not pretend to have been naturalized.” (excerpted, emphasis added)

Note well judge Carroll (Voeltz v. Obama): contrary to your “miracle”, holding office is not proof of citizenship.

[1] Treaty of Peace, Friendship, Limits, and Settlement with The Republic of Mexico, 9 Stat. 922, 939 (1848) available at memory.loc.gov/ammem/amlaw/lwsllink.html

[2] John Bassett Moore, 2 History And Digest Of The International Arbitrations To Which The United States Has Been A Party, 1287 (1898) available at books.google.com

[3] Id. at 2449

[4] Id. at 2450

[5] Id. at 2547

By grace of Providence, with prayer for protection

ANALYSIS OF NATIVE & NATURAL


Here the definitions of the words “native” and “natural” are analyzed in detail so that we may have a better understanding of each.

Several dictionaries were consulted, and the relevant entries are available under Native and Natural in the Definitions Category shown on the right.

For the first phase of analysis the definitions for each word were reviewed and the (Latin) origin of each word was  gathered together in a list and the duplicate definitions removed.  Several Latin-English dictionaries where consulted to determine the English definition of each Latin term.  (Collins Latin Concise Dictionary, The New College Latin and English Dictionary by John C. Traupman, Ph.D., and Notre Dame – Latin Online). The Latin root words and their definitions are listed in a PDF document which you can download or view.

As the analysis makes clear, the various Latin forms of “native” and “natural” do share common roots and overlap to some degree.  Both do pertain to “birth”.  Also as clear, and perhaps most important to take notice of, is that “native” is almost entirely related to “birth” whilst “natural” encompasses “quality” and “character”.

These results led to needing to determine the extent to which “native” might pertain to anything other than “birth”.

To determine this, all the definitions for “native” where compiled in a table and each definition was reviewed to determine whether it pertained to birth, birth plus additional attributes, or was ambiguous.  The details of this analysis are available in a PDF document which you can download or view.

This analysis shows that 57% of the definitions for “native” pertain solely to “birth” whilst only 13% pertain to birth with additional qualifiers.  33% of the definitions were ambiguous in some way.  Even including ambiguous and birth-plus in the same group still gives a 57-46 split.  (Percentages  exceed 100% due to items being assigned to more than one category.)

“Birth only” is strongly indicated as the most accurate definition of “native”.

We now turn to an analysis of “natural”.  This was more complex owing to the variety of definitions.  To simplify, the definitions were grouped into “families” of related concepts.  This resulted in five groups.  All the definitions for “natural” where compiled in a table and each definition was reviewed to determine to which family of concepts it pertained.

The details of this analysis are available in a PDF document which you can download or view.

49% of the definitions fell into the “other” category.  The natural conclusion is that additional concept families are needed.    Upon review it was determined that many of these definitions pertain to “the universe”, “science”, and “philosophy/religion/spirituality”.  Of the 21 definitions that fall into the “other” category, 9 are of this type.  The remaining 11 are split between self-referencing definitions (4), consanguinity(5), and the truly miscellaneous(2).

With the possible exception of consanguinity, none of these “others” are relevant.

The following definitions apply to “natural”:

genuineness, authenticity  – 14%
having particular characteristics – 12%
the normal course – 12%
consanguinity – 12%
untended, uninfluenced – 9%

There is a relatedness among these concepts that draws them together into a whole.  When considered in the context of “natural born” meaning “being born in the country to two citizen parents” that whole comes into clear focus.  A focus further sharpened since none of these concepts apply to “native”.

Natural and native have “birth” in common, but natural encompasses much more.

These meanings of “native” and “natural” have not wavered since the roots of this country first began to form.   Considering the etymology, the general meanings of natural and native have stood for thousands of years.

It is undeniable: natural is more than native.

Natural is “native” plus certain qualities.  And very particular qualities.  Qualities such as consanguinity.   Qualities of genuineness and authenticity.  Qualities not requiring any naturalizing influences.

Native is less than natural.  Natural subsumes native.

So then, when the US Constitution uniquely specifies “natural born citizen” for the office of President, and for no other office, and when “natural” is so clearly differentiated with such particular distinctions from “native”, reason forces the conclusion that mere birth on US soil – jus soli – is not sufficient for qualification for office.

Native born is not enough.  There are the added dimensions of “natural”, notably consanguinity and no requirement for any naturalizing influences (statutes).


If you do find a gross error or take issue with some point, you are welcome to assemble a collection of linguists and etymological scholars to work independently, submit their individual findings to a set of statisticians who themselves will work independently to tabulate the results, and then report back.

Or you can post your concerns below.

(Originally published 2009/04/03)