From Feudalism to Consent: Rethinking Birthright Citizenship

From Feudalism to Consent:

Rethinking Birthright Citizenship

This post is modified with corrections from a similar post on Mario Apuzzo's blog on August 23, 2015 at 10:25 PM.

>> http://puzo1.blogspot.com/2015/07/july-4-1776-birth-day-of-nation-and.html

<<>>

After reading John Eastman's 2006 piece on Heritage.org about birthright citizenship, I visited Mario's blog and saw that Sven had a good comment with an accurate conclusion, Cruz and Obama are ineligible, and I thought I would post a portion of Eastman's piece when I realized that he has a more complete "feudal to consent" reason why Obama and Cruz are not eligible.

Eastman adduces Thomas Jefferson, the Declaration of Independence, the political theory of the "consent of the governed" vs. the "feudalism of medieval England" and the "natural-born subject" and "allegiance to the king which can never be renounced," and he has a quote from Prof. Edward Erler which starts with "[T]he social contract requires reciprocal consent."

My point is that the "reciprocal consent" of the governed includes rethinking the 1898 United States v. Wong Kim Ark decision and how it misinterpreted the 1868 Fourteenth Amendment, and so the Fourteenth Amendment has been erroneously misapplied since 1982, when Justice William Brennan, as Ken Klukowski wrote in his second Breitbart.com article that I mentioned earlier:
>> http://www.breitbart.com/big-government/2015/08/20/liberal-and-establishment-arguments-for-birthright-citizenship-fail/

"... the 1982 case Plyler v. Doe, where the notoriously liberal Justice William Brennan— writing for the Supreme Court in a 5-4 decision—slipped in an obscure footnote on one page that legal immigrants cannot be treated differently from illegal aliens."

>> http://www.heritage.org/research/reports/2006/03/from-feudalism-to-consent-rethinking-birthright-citizenship?ac=1#_ftn9

In the section titled A Citizenship of Consent, not Feudal Allegiance Eastman says"

"Once one considers the full import of Justice Gray's language in Wong Kim Ark, it becomes clear that his proposition is simply incompatible not only with the text of the Citizenship Clause, but with the political theory of the American Founding as well.

"At its core, as articulated by Thomas Jefferson in the Declaration of Independence, that political theory posits the following: Governments are instituted among particular peoples, comprised of naturally equal human beings, to secure for themselves certain unalienable rights. Such governments, in order to be legitimate, must be grounded in the consent of the governed-a necessary corollary to the self-evident proposition of equality.[30] This consent must be present, either explicitly or tacitly, not just in the formation of the government, but also in the ongoing decision whether to embrace others within the social compact of the particular people. As formulated in the Massachusetts Bill of Rights of 1780:

"The end of the institution, maintenance, and administration of government, is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights…. The body-politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good.[31]

"Thus, as Professor Edward Erler has noted:

"[T]he social contract requires reciprocal consent. Not only must the individual consent to be governed, but he must also be accepted by the community as a whole. If all persons born within the geographical limits of the United States are to be counted citizens-even those whose parents are in the United States illegally- then this would be tantamount to the conferral of citizenship without the consent of "the whole people."[32]

"In other words, birthright citizenship is contrary to the principle of consent that is one of the bedrock principles of the American regime.

"Such a claim of birthright citizenship traces its roots not to the republicanism of the American Founding, grounded as it was in the consent of the governed, but to the feudalism of medieval England, grounded in the notion that a subject owed perpetual allegiance and fealty to his sovereign.[33] A necessary corollary of the feudal notion of citizenship was the ban on expatriation, embraced by England and described by Blackstone as follows:

"Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth. For, immediately upon their birth, they are under the king's protection…. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, canceled, or altered, by any change of time, place, or circumstance…. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other, and cannot be divested without the concurrence act of that prince to whom it was first due.[34]

"Thus, when Congress passed as a companion to the Fourteenth Amendment the Expatriation Act of 1868, which provided simply that "the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness," it necessarily rejected the feudal birthright citizenship doctrine of medieval England as fundamentally incompatible with the principles of the Declaration of Independence. As Representative Woodward of Pennsylvania noted on the floor of the House of Representatives: "It is high time that feudalism were driven from our shores and eliminated from our law, and now is the time to declare it."[35]

"Such remnants of feudalism were rejected by our nation's Founders when they declared to a candid world that they no longer owed allegiance to the king of their birth. They were rejected again by the Congress in 1866 and by the nation when it ratified the Fourteenth Amendment."

Art
U.S. Constitution: The Original Birther Document of the Union
( OriginalBirtherDocument24.blogspot.com )