The English Common Law Definition of Natural Law Is Not Part Of The Law Of Nations.
Some have written to ask me whether the Law of Nations is based on natural law, and whether this creates a contradiction to my argument in the Amicus Brief I have submitted in the Georgia POTUS eligibility cases. The answer is no, it is not a contradiction in any way, shape or form. And here’s why:
Customs of international law have developed over millenia as nations have confronted each other. These customs created international law, aka, the Law of Nations.
The Law of Nations respects the sovereignty of each nation, and each nation’s right to worship God as they please, or not to worship God at all. When this custom is violated, wars are inevitable. Natural law under the Law of Nations, therefore, must be non-denominational (including Atheism).
Furthermore, Vattel’s famous treatise didn’t create the Law of Nations. His text is an observation of customs that developed between nations, such customs going back centuries well before Christ walked the Earth.
Christian nations, Atheist nations, Islamic nations, etc., all respect customs of the Law of Nations, but they do not share the same concepts of natural law. To a Pagan, nature is God. To a Marxist/Atheist, science is God. And so on… But all nations do agree that procreation is part of nature.
The English common law was absolutely Christian, and their entire system of Government was based upon their unique view of natural law being issued directly from Jesus Christ as enforced by the English monarch.
I am a Christian, but I do not want religion being established in our government. Jesus said, “Give unto Caesar what is Caesar’s, and give unto God what is God’s.”
Those who believe in Christ, believe natural law emanates from Christ, and those who believe in Allah, believe natural law emanates from Allah. The same is true for those who worship the sun, or the elements, or the stars.
The English common law has Christ at the head of its government, with the King as his main man on Earth. That was the rule of natural law for their nation. Other nations had different concepts of natural law. Again, to a Marxist/Atheist nation, science is natural law. So, with regard to the international community as governed by the Law of Nations, natural law is non-denominational, and even non-spiritual for Atheist nations.
There is a fundamental distinction between natural law in the international community, and natural law under the English common law.
Our Constitution forbids the establishment of religion, while respecting the rights of all persons to worship God or nature as they like. The English common law is in direct polar opposition to our Constitution, in that infidels were considered enemies of the state. In Calvin’s Case, which is universally recognized as having established the English common law with regard to the jus soli rule, the decision makes it perfectly clear that the English common law presumed infidels would never be converted to Christianity, and it specifically states that they are subjects of devils.
Hence, one could be born on English soil, in the King’s castle even, to parents who loved the King, but if the parents weren’t Christian, they could not be natural-born subjects. Instead, they were considered enemies of the King, because they refused to believe that the King was God’s monarch on Earth. This is not “natural law” to anyone who wasn’t Christian.
The English common law’s uniquely Christian definition of natural law governs the English common law concept of natural subjection/natural allegiance. And that is why the English common law definition of “natural-born subject” can never be judicially recognized as synonymous with “natural-born citizen”. Such a construction of Article 2, Section 1, would be directly repugnant to the 1st Amendment.
IT COMES DOWN TO STATUTORY CONSTRUCTION.
Perhaps due to the sensitivity of the spiritual concepts discussed in my Amicus brief, people have not been as focused upon my first point in the brief, which is the most important point, and it’s the simplest as well.
The rules of statutory construction in this nation forbid the construction of any clause in the Constitution that renders another clause inoperative. Each clause, and each word of each clause, must be given separate and unique meaning. When the legislature enacted the 14th Amendment, it did not include the word “natural”. The Amendment states that persons born in the country, subject to the jurisdiction thereof, are citizens. It does not say that they are natural-born citizens.
The legislature could have drafted the amendment so that those born here were deemed to be “natural born Citizens”, but the legislature didn’t. And our federal courts are barred, according to the rules of statutory construction, from holding that the 14th Amendment creates natural-born citizens. Had Congress intended the Amendment to do that, their intention to do so must have been clear and manifest. Therefore, such a construction is not only wrong, it is inadmissible according to Chief Justice Marshall’s majority opinion in Marbury v. Madison.
The issue now confronting the nation as to the true Constitutional meaning and intention of the natural-born citizen clause is not as complex as it appears. When one analyzes it in the context of the firmly established rules of statutory construction, it becomes clear that 14th Amendment citizenship is not, by itself, enough to be POTUS eligible. In order for a court to hold that 14th Amendment citizenship alone makes one a natural-born citizen, the court would be required to completely overrule the very foundation of law in this country; checks and balances created by the separation of powers.
Perhaps the judicial branch is willing to do that to protect President Obama from the Constitution’s authority. But in doing so, the judiciary would destroy our legal system. This is because such a construction would be a complete usurpation by the judicial branch of the power granted by the Constitution to Congress.
Therefore, the only possible way to Constitutionally construe the natural-born citizen clause is to require something more than 14th Amendment citizenship. That something more is citizen parentage. And that is exactly how the Supreme Court construed it in Minor v. Happersett, 88 U.S. 162 (1874).
Leo Donofrio, Esq.
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