I suggest you peruse District of Columbia v. Heller, 554 US ____ (2008) for an example of how this current court does historical analysis of Constitutional phrases. They do not, as you suggest, divide English law into Common Law and Statutory Law and say that the one is used for Constitutional interpretation and the other is not. The court looks at legal dictionaries of the time, which did not distinguish, in their definitions, between Common Law and Statutory Law. The court also cites to statutes as providing a source for definitions:



They also cite later-written state constitutions and contemporaneous treatises. They cite the 1671 Game Act, they cite proclamations by William and Mary, and they cite they cite Blackstone, ("whose works, we have said, 'constituted the preeminent authority on English law for the founding generation...'"). Here's the part of Blackstone they quote:



Gray's originalism is not the originalism of Scalia, Thomas and the current court. Scalia, et. al., approach the Constitution hoping to find its original meaning. Therefore, if a reasonable person at the time would have understood "natural born citizen" to encompass both the judge-made and the English statutory meanings of the term, then it would require some extra verbiage to carve away that statutory meaning. Horace Gray appears to have been searching for the TRUE meaning of the phrase, the phrase's meaning at natural law. Compare and contrast the interpretive styles of Scalia and Gray:

Scalia:


Gray:


Do you see anything in Gray's methodology that allows for reference to legal dictionaries and contemporaneous treatises? Do you see anything in Scalia's to disallow reference to statutory law?

Further, as pointed out in James Kettner's book, the distinction between <i>jus soli</i> and <i>jus sanguinis</i> was not clearly between judge-made and statutory law. Jus soli was established by law in 1368, long before any judge explained the natural law basis for the decision. The first sentence of Kettner's book makes this clear:

[/quote]

Nor was jus sanguinis limited to statutory law. A 1343 law stated that the children of the king could inherit as Englishmen, but it didn't elucidate the issue for commoners. A 1290 judicial decision (the Case of Elyas de Rabayn - predating both the previously referenced statutes) allowed the foreign-born son of a native English mother to inherit, but dicta in the case limited its application to "other aliens." A 1350 law, De natis ultra mare dealt directly with the issue, but later cases narrowed the statute, or enlarged it, and some found the right of jus sanguinis in natural law, not statutory law - for example, Rex v. Eaton, Lit. Rep. 23 (1627). The over-arching theme of these statutes and judicial decisions was not place of birth or parentage, but allegiance. Those born within the allegiance of the king were natural born subjects.

Let me summarize:

1. The most conservative members of the court today do not limit their historical research on Constitutional Terms to judge-made law. They want to know what the term meant when the Founders wrote the Constitution and they often look to English statutes. The only thing they exclude are secret or technical meanings not known to the public.
2. Gray's history is distorted when it assumes a clear, judge-made/statutory, distinction between jus soli and jus sanguinis. Both had judge-made and statutory sources.

Of course, if there was no common law to help out here, the Court would have to look at other relevant data. However, and that is the simple point here: When terms remain undefined in the Constitution one looks at Common Law. This is a well established principle, outlined in Wong Kim Ark and referenced many subsequent times.

So let's look at what the Court in US v Wong Kim Ark argued



Smith v Alabama



You point to Scalia in Heller as if it supports your position. Could you elaborate with something more specific than the assertion?

Well, for example, he looked to the English Bill of Rights, an Act of Parliament:

"By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999) , cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service."

Greg's analysis above is excellent. However, I am not sure Gray's methodlogy is very different. I do not believe Gray would take an irrational postition that all undefined terms must be defined by the common law, whether or not they are not even common law term. Rather, he appeared to be defining a term that was clearly defined under the common law and no one argued it was understood to have a broader meaning. According to Gray, he looked to the common law because "the principles and history of which were familiarly known to the framers of the Constitution.' Hence, he too was trying to understand what the framers would have understood such language to mean, not enact a strict rule that the common law alone defined all terms.

That's because Common Law does not really help out here. As the Court in US v Wong Kim Ark argued, the meaning of terms not defined in the Constitution need to be found in Common Law. I can accept that if Common Law is insufficient then there are ways to determine how the terms should be interpreted. However, the term "natural born citizen" is a well understood term under Common Law and thus, following the Court's position



In US v Wong Kim Ark, in addition to looking at the Common Law, the Court also explores precedential rulings, scholarly understanding and statutory interpretations to reach the conclusion that jus sanguinis (derivative or descent based citizenship) was left to Congress under the Constitutional power to provide for uniform rules of naturalization



The Court even addresses the Statute passed in Edw III and finds that it was not declaratory of Common Law practices when it extend citizenship to children born abroad to subjects.


So let's see what options remain

1. The term natural born as used in the Constitution extends not just to children born on soil, owing allegiance but also to children born abroad to US citizens.

If that is the case we are faced with the following problems

a. Congress found it necessary to explicitly deal with the citizenship of such children in their first Naturalization Act
b. Congress, inadvertently denied citizenship to such children from 1802 until corrected in the middle of the 19th century
c. In Rogers v Belei the Court found that such children are NOT 14th Amendment children and that Congress can decide whether or not to extend citizenship to such children and set rules and limitations.
d. In Miller v Albright Justice Scalia in his concurring opinion observes


So while you are undoubtably correct to argue that when Common Law is lacking, the Court will have to find its answers elsewhere, the fact also remains that when Common Law does define the term, its meaning should be taken as guiding the terms as used in the Constitution.

So Heller, while interesting does not undermine the argument here that the meaning of terms not defined in the Constitution should be found in Common Law. And that under Common Law, there was a clear understanding of what natural born meant. Blackstone clearly established that the term under Common Law, had a strict and unchanged meaning of "born on soil, owing allegiance to" and that statutory law had never been absorbed into Common Law as to the meaning of the term Natural Born.

That by itself should have been sufficient but the Court went on to show how this Common Law principle continued in the Early Colonies and the republic, up to the signing of the Constitution. The Court shows how contemporary legal scholars, also support the position and even address lower court rulings which may have suggested otherwise.

There is nothing irrational about the position expressed by Gray and based on good Jurisprudence, that the meaning of the terms left undefined need to be found in Common Law. Of course, if Common Law remains silent, one may have to resort to other resources. That is self evident, logical and reasonable.

To call this an irrational position is irrational in itself since it takes a position and modifies it...

You have turned Gray's position and my position into a strawman by adding "whether or not they are even common law terms'... Through such sleigh of hands and words, you have changed the argument to something that fails to resemble my position.

I can understand why you may have confused my arguments so let's return to the original argument which is that when terms remain undefined in the Constitution its meaning should be found in Common Law.

Then we can decide if there was a Common Law definition of the term natural born citizen and decide what the term meant....

Then we can decide if there is any support for the various positions outlined so far, including

1. Natural born citizen includes children born abroad to US citizens because this was the common law and statutory understanding of the term.
2. Natural born status cannot be limited but can be extended by Congress under their Constitutional power to define Uniform Rules of Naturalization

Did I miss any others?

1. is clearly unsupportable by early history, scholarly understanding as well as the Supreme Court position in US v Wong Kim Ark, Rogers v Bellei and Miller v Albright, to mention just a few relevant cases. If natural born citizen extends to children born abroad to US citizens then Congress cannot take away such citizenship because it would be a Constitutional right. Since Congress can in fact grant as well as take away citizenship status, it is clear that the US Constitution does not protect the citizenship of such children and that they thus cannot be Natural born citizens. After all, we can all agree that Congress cannot limit Constitutional rights through statutes?

Justice Gray joined this opinionin In re Kemmler:

"The provision in reference to cruel and unusual punishments was taken from the well-known act of Parliament of 1688, entitled "An act declaring the rights and liberties of the subject, and settling the succession of the crown," in which, after rehearsing various grounds of grievance, and among others, that "excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects; and excessive fines have been imposed; and illegal and cruel punishments inflicted," it is declared that "excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."[1] Stat. 1 W. & M. c. 2."

No common law. Justice Scalia joined Thomas in Helling v. McKinney:

"There is "no doubt" that the English Declaration of Rights of 1689 is the "antecedent of our constitutional text," Harmelin v. Michigan, 501 U. S. 957, 966 (1991) (opinion of Scalia, J.), and "the best historical evidence" suggests that the "cruell and unusuall Punishments" provision of the Declaration of Rights was a response to sentencing abuses of the King's Bench, id., at 968. Just as there was no suggestion in English constitutional history 39*39 that harsh prison conditions might constitute cruel and unusual (or otherwise illegal) "punishment," the debates surrounding the framing and ratification of our own Constitution and Bill of Rights were silent regarding this possibility."

As Greg says, the test for Scalia is what the common understanding of the term was, not its source. Again, the argument of a broader understanding outside of the common law was not made, and hence not rejected, in Wong Kim Ark.

I would agree, so why are we arguing fiction rather than the arguments made?

I appreciate your pure speculation, and if there were some supporting evidence then you may be able to make a more compelling argument. You call it a plausible argument, but based on what? Plausibility is either subjective as in "I can imagine that", or factual.

As the Court argued in order to best understand the meaning of the term, one need not look further than Common Law, which is what was adopted in many of our early states. Why we should be interested in statutory laws of England, especially when there is no evidence that they were ever adopted, is beyond me.

The Founders, who must have been extremely familiar with Blackstone and the principle of natural born would have realized that the term was limited in its common law meaning to birth on soil. Which is reflected in the 14th Amendment which considers only two sources of citizenship birth on soil, reflecting the concept of natural born status as found under Common Law principles, and naturalization in the United States. Because of the formulation, naturalization in the US, the Courts later found that those naturalized outside the US were not covered by the 14th Amendment and thus their status was totally determined by statutory law.

Now, one may argue that the term natural born, was still to be interpreted as extended to children born abroad, but then the findings by the Court in Rogers v Bellei, US v Wong Kim Ark, Miller v Albright etc do not make much sense.

Could Congress extend or limit the Constitutional rights as outlined in the Constitution? Not through statute. Or we would see the somewhat illogical conclusion that Congress can extend natural born status to the class which was clearly to be excepted, those born abroad and later naturalized in the US.

Derivative citizenship under 'jus sanguinis' was never part of Common Law and required strict statutory enactment.

I am proud Ballantine that you are still arguing a strawman. As to Wong Kim Ark, it clearly stated that the term Natural Born, found in Common Law was clearly limited to jus soli.

Compare what Gray did in section IV of Wong Kim Ark with the approach that Scalia took in Heller. Gray points to the argument that the 1350 statute had incorporated the then existing common law:



He places the source of these arguments:



In rebutting them, he shows that in 1483 and in 1688, it was not commonly understood that natural born included those born abroad to subjects. That's, at best, 99 years before the adoption of the Constitution.

Scalia would ask what the Founders understood "natural born" to mean in 1786, not 1483. In that sense, Lynch v. Clarke is a much better source of evidence than the 1483 statute that expressed doubts about foreign born subjects:



It should be noted that Lynch didn't just rely on the 1483 statute and the 1688 roll, it also relied on English legal treatises (Reece's Hist. of the English Law and Kent's Commentaries) and Bacon v. Bacon, in which two judges held that jus sanguinis comes from common law, and Doe dem. Thomas v. Ackland where two judges also said that jus sanguinis was a common law principle.

Lynch v. Clarke, written in 1844, is a much better indicator of what the Founders believed in 1785-1786 than a work that predated the founders by 99 years!

Gray, then, is concerned with whether there was a philosophical reason to include those born abroad in the definition of natural born. Scalia is much more concerned with whether the founders thought the term included those born abroad.

The difference is that Gray could be completely right that no cases find a clear common law precedent for jus sanguinis but the founders could still think that the term included those born abroad. They had Reece, Croke, Brampton, Tindal, Hussey, Parke and Chancellor Kent to support their beliefs. The founders didn't have the benefit of Justice Gray correcting their misinterpretations, nor even Binney. Remember, Binney's tract was written explicitly to correct the public, and even correct Chancellor Kent!



Possibly, I think, though, that Gray's methodology stems from the ideas of natural law as separate and definable - stemming from first principles. So, if the framer's believed Kent that natural born was an inclusive term, then they were simply wrong.



Scalia thinks he's defining common law when he references British statutes, etc:



NBC, you seem to be arguing the way I've characterized Gray's treatise - that if the Founders thought that British Common Law included jus sanguinis and it, in fact, did not, then the Founders' beliefs are irrelevant and we go with British Common Law? Is that what you're arguing?

So now your rule is that we have to look to the common law and only else where if the common law is silent. How many times do we need to point out that the relevant question is what the term was originally understood to mean, not what the common law meant. We did not adopt the common law. The only look to the common law to help provide such original understanding. To claim that there is some rule that we must always look to the common law first makes no sense and has never been the law. If the common law had been altered by statute in 1600 and everyone in 1787 understood the amended meaning, it would be irrational to only look to the common law as that was not what the term was understood to mean at the time. It is not a strawman, as there is a substantial argument that the relevant terms were understood in 1787 to have a broader meaning than the common law and for some Justices, that will be enough to push aside any contray dicta. To say such is unsupportable by earl;y history is silly. There is no early history on the topic and the Court will clearly look first to English law on the issue like they always do. Finally, until a court addresses the issue directly, there is no consitutional right to natural born status. That doesn't mean there is not a plausible argument that such right should extend to such persons or that Congress would have the authority to extend such right. What would you say if you appeared in fromt of Scalia and he said he was only interested in the meaning of the terms in 1787? What authority do you have that these terms were understood other than as understood under English law?

Totally wrong

He says there was no common law principle. Again, no one discussed or argued whether there was an understanding outstide of the common law. Different question. See, that is how Supreme Court case law evolves. In subsequent cases people raise arguments not addressed in previous decisions and the court often expands or narrows its previous conclusions to reflect the merits of the new arguments.

Again, Binney is talking about the common law, not the definition of "natural born" in the Constitution. Can you not understand they are not necessily the same? Again, they did not adopt the common law, we only look to the common law to help us understand what the term meant. We do not only look to the common law.

Again, you are making a lot of assertions that it is irrational to look only at common law but when it comes to understanding the meaning of terms not defined in the Constitution, it is the most reliable and objective way to look at these terms. Combine with this, as the Court has done in US v Wong Kim Ark, with the fact that this was the overwhelming understanding by scholars and the lack of evidence to the contrary, and you have the argument. It's not I who made the observation that






Again, your use of terminology that describe your inability to provide supporting evidence is telling. But unlike US v Wong Kim Ark, you have a long way to go in your argument that it is supportable by early history.



Again missing the point. There is no constitutional right to have a Court decide whether or not you are a natural born citizen, which of course does not mean that the term Natural Born Citizen does not have a clear meaning, which, as the Court in US v Wong Kim Ark decided, is to be found in Common Law. Not just common law, but it clearly rejected any hopes that common law principles included granting citizenship to children born abroad





The Supreme Court in US v Wong Kim Ark, Scalia in Miller v Albright come to mind.

There is no evidence that the Constitution grants Congress the right to extend the status 'natural born citizen', a Constitutional term, through statute to include others. It merely provides for uniform rules of naturalization. Congress, as is argued in Schneider v Rusk



Native born and naturalized... Two well understood classes. Since Congress can only deal with naturalization it cannot extend eligibility to be President.

And



Seems rather straightforward. So I would suggest to Justice Scalia to look at his own position, the position of the Supreme Court in previous rulings as well as the meaning of the term under Common Law principles.

Fascinating.... I love those moving goalposts. So now you accept these facts but argue somehow that one may raise arguments not addressed in previous decisions... Such as what? I already have shown you that the Court considered the argument of jus sanguinis and rejected it. Now you may argue that this was dicta, however the same evidence that let the court to reach this decision still exists. Why do you believe that the Court would come to a different conclusion this time? When it already has stated that children born abroad to US citizens do not fall under the 14th Amendment citizenship clause and that Congress may restrict citizenship under their powers to provide for uniform rules?

You have to show that such a position can be reconciled with a position which argues that such children were still natural born citizens but even though they are thus protected from having their constitutional right infringed, Congress can still do this using statutory provisions, as it once did, inadvertently.

Nope.

I am arguing, as Gray is, that the meaning of such terms when left undefined is to be found in Common Law. Now, one may argue that the Founders did intend to include children born abroad, but why would they see it necessary to provide for said children through a statute? That does not make much sense...

Common Law is clear, Scholarly resources are clear and the terms were left undefined and thus their meaning should be found in Common Law practices with which the Founders were ultimately familiar. The argument that Common Law included jus sanguinis was rejected based on scholarly understandings. The Court even found time to address the position in Lynch v Clarke to observe that it was flawed in its position by pointing again, to contemporary resources. It would not be the first time for a Supreme Court to correct lower Court rulings, although in this case the issue was a minor and irrelevant aspect of the ruling.

Let me turn around the question: Lacking any objective information about the Founders' beliefs here, would you still argue that the Courts in US v Wong Kim Ark, Rogers v Bellei etc were mistaken? Now I personally do not like the ruling in Rogers v Bellei but the position of the Court, and especially Scalia appears to be quite straightforward.
If jus sanguini were part of the Constitution then Congress could not limit the citizenship to said such children born on foreign soil and yet, the Court ruled that Congress could in fact do this as these children were NOT 14th Amendment Citizens.
Remember that the 14th Amendment merely formalized Constitutional principles of citizenship and nationality, observing that birth on soil, owing allegiance, was one of the two ways, under the 14th Amendment, to gain citizenship. This reflecting the fact that citizens were either natural born/native born or naturalized.

I disagree with this premise, both as you have stated it, and as you apparently mean it (to encompass only judge-made law).

1. The law is a trailing indicator. Definitions change in society before those changes show up in the law. There are terms in the law that are mouldering in place. Burglary, for example, means, in the common law, "The breaking and entering the house of another in the night time, with intent to commit a felony therein, whether the felony be actually committed or not."In common usage, it means to break into someplace to steal something. If all of society has moved on from the common law definition of burglary, for example, the majority of states have eliminated the "at night" part of the definition, by statute. If I write a Constitution, which is intended to be a binding social contract with society, the terms should accord with what the society at the time believes them to mean!

2. Every expert I have read on the subject has said that there was not a clear distinction in English jurisprudence at the time of the Founding between judge-made law and statutory law when judges were referring to "common law." Example: Polly Price, Natural Law and Birthright Citizenship in Calvin's Case, 9 Yale J. L. & Human. , 89 (1997):



3. I subscribe to a Living Constitution philosophy. Originalism is a fraud.



1. Do you define common law as judge-made law only as opposed to statutory law?
2. If I can prove that an undefined term means X to the founders, but Y in judge-made common law, you would go with the Common law?

If it can be shown that in arguing for the Constitution, the Founders clearly meant a term to mean something different from Common law, then I would not consider the term to be 'undefined'. But I understand your point, even though it has little relevance to the issue of the meaning of natural born. Lacking such clear and consistent view amongst the Founders, one should indeed look to Common Law as the objective interpretation of the terms as used.

Do you believe that the Founders, who were extremely familiar with the Common Law principles, would use terminology which would be at odds with the Common Law?

You are just going to keep citing dicta that does not directly address the issue and ignore the fact that the court has often ignored dicta and focused solely on the original understanding like in Heller. I have said from the beginning that there is not post-ratification authority to support my view. However, that doesn't mean it wouldn't prevail based upon the contemporary understadning of English law. Wong did not address the definition of "naturalization" and its discussion of jus sanguinis was pure dicta and relating to whether there was such a right under the common law. Can you not understand that the argument that the term had a well understood meaning outside of the common law is a different argument. Schneider v Rusk was about discrimating against naturalized citizens. Any implication about the limits of naturalization is clearly dicta. Like it or not, there is a substantive argument that these terms had a different meaning in 1787.



Sorry, makes no sense. Why would the common law be the most reliable and objective way to look at these things? Look at Heller, they look at both the common law and statutes, again, as they are trying to determine what the term meant. The cases on cruel and unusual punishment looked to the common law and statute as, again, they were trying to determine what the term meant. I really don't get the fixation with the common law.

That is how I understand its meaning, not to be confused with the fact that statutory law cannot become incorporated in Common Law. But it's through the combination of Common Law and Statutory law that the Courts reach their decisions. In that sense they are not separate yet still distinct concepts.

It found a definition of NBC that included those born on our soil - ratio decendi
It excluded those born abroad from that definition - pure dicta.

That the common law includes the former is undisputed and uncontroversial. That it exludes the second is entirely controversial. There is history of the development of citizenship in England and in the United States, (Kettner's The Development of American Citizenship, 1608-1870, for example). But the fact that Gray has a different history is more an indictment of the quality of history practiced by our courts than anything else. I would recommend the article, "History "Lite" in Modern American Constitutionalism" by Martin Flaherty that shows the poor quality of historical scholarship that makes its way into our legal system, and also provides a roadmap for true legal history.



Were they familiar with Common Law as Gray defines it, or Common Law as Chancellor Kent defined it? Gray would have us believe that the Founders understood that Kent was wrong when he put jus sanguinis into the common law (perhaps by time travelling to 1898 and reading his decision)?

If there prevailed a view of Common Law at the founding that was wrong did the founders mean that, or common law as corrected later by Binney and Gray?

The term "natural born" has a clear meaning under Common Law, thus the argument by the Courts is, that when the Founders left the terms undefined, they must have been referring to the Common Law. Now one may argue that this is 'silly' but the Courts cannot speculate as to what these terms may have meant without resorting to something that can objectively establish the meaning of the terms. After all, the Founders were quite familiar with Common Law and thus when using terms clearly understood in Common Law, and lacking any alternative information that helps define these terms, the Courts have ruled that they should look at the Common Law definition when it comes to understanding terms left undefined in the Constitution. I have given you the reference in US v Wong Kim Ark and the rulings to which the Court is pointing.

The Court then, based on this foundation, looked at the Common Law definition of the term, finding not only that Common Law was restricted to Jus Soli but also referencing Binney who observed:



There is nothing 'magic' here, other than that Common Law helps us understand how these terms were likely interpreted by the Founders, since they left its meaning undefined.



Now, you may argue that if there was evidence to the contrary that the Court should also consider this, and as the Court has show in US v Wong Kim Ark, there was no evidence to support the argument that the term included naturalization of children born abroad to US citizens.

The existence of Statutory Laws in England again were seen as not relevant because it was observed that within the Common Law, which was adopted many states, there was no confusion as to the meaning of the term.

But let's for the moment accept the two alternatives I have so far identified and see where they lead.

Do you agree or disagree that even if we were to accept your claim that we should include statutory principles, there is still no compelling case? I have outlined my position on both arguments.

I love it. Now that the arguments become too inconvenient, the issue has become that Gray's understanding of history was somehow flawed. You are now making the somewhat common logical fallacy that because there are examples of poor historical scholarship that therefore all historical scholarship should be suspect.

Thus the argument becomes even more an uphill battle to convince the Court that not only Gray was mistaken in his positions outlined in Wong Kim Ark but also that the Court was wrong in Rogers v Bellei or that Justice Scalia was mistaken in his observations in Miller v Albright. Because all these come down to the simple observation that there is no Constitutional protection for children born abroad to US citizens, certainly there is no right for said children to be acknowledged as citizens, let alone natural born citizens, a term which the Constitution clearly limited to birth on soil, especially in light of the later statements in Rogers v Bellei.

To claim that the second is entirely controversial requires a little bit more development. I will see what Kettner has to say here. It's unfortunate that Kettner does not cover WKA

Again, misunderstanding the difference between dicta and ratio decendi. I don't need to prove that Gray was mistaken in Wong Kim Ark, I only have to prove that he was wrong in dicta.



Show me exactly where, in the Constitution natural born citizen is "clearly limited to birth on soil."



You've been pointed to Jill Pryor's article. You know of Gabriel Chin's article (McCain would have been a natural born citizen if he had been born under a later Canal Zone law). There's Charles Gordon's 1968 article. There's Presidential Timber, 35 Cornell L.Q. 357 (1949). AP Morse's 1904 article, Ludlam v. Ludlam 1863, Lynch v. Clarke 1844, Ainslee v. Martin ("It was acknowledged that they and their posterity owed and were to owe allegiance to him and his successors, as their sovereign, which was the bond of connection between them and their fellow subjects who remained in England.").

What's the most recent article you can find that says it is unequivocally true that those born abroad are not eligible for the Presidency?