Obama eligibility: reactions to ruling
The latest Obama eligibility ruling shocks, mystifies, and outrages activists and Constitutional scholars who have seen it. Many argue that the judge did not properly apply either the law or existing precedent.
Obama eligibility from statutory construction
Activist Nick Purpura told CNAV this morning that Judge Michael M. Malihi failed to apply statutory construction in ruling against Plaintiffs Weldon, Svenson, and Powell. (The case of Plaintiffs Farrar et al. is a different matter.) Statutory construction means that when two propositions bear on a case, the court must construe a separate effect for each one, unless the legislature involved has said explicitly that one proposition repeals the other. No such thing as an “Abrogation Principle” exists in American law.
Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. See, e. g., Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961); Rodgers v. United States, 185 U.S. 83, 87-89 (1902).
The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. “When there are two acts upon the same subject, the rule is to give effect to both if possible . . . The intention of the legislature to repeal `must be clear and manifest.’ ” United States v. Borden Co., 308 U.S. 188, 198 (1939).” Morton v. Mancari, 417 U.S. 535, 550-551 (1974).
In this case, two parts of the Constitution bear on the Obama eligibility challenges:
- Only a natural-born citizen may become President (or Vice-President) of the United States.
- Any person born in the United States (and subject to its jurisdiction) is a citizen.
Question: does Proposition 2 above qualify Proposition 1? Answer: No. Proposition 2 defines generally that class of persons who may vote, and hold offices other than that of President and Vice-President, by virtue of their birth. Proposition 1 gives the strict rule on who is eligible to be President. (By Amendment XII, a candidate for Vice-President must also be eligible to the office of President.) The terms citizen at birth and natural-born citizen do not mean the same thing. If they did, then Proposition 2 above would need the words “natural-born” within it. Because it did not, the phrase “natural-born citizen” must mean more than merely being born in-country.
Likewise, the Senate resolution somehow “declaring” that Senator John McCain, R-Arizona, was a “natural-born citizen” could have no force or effect. Only a Constitutional amendment could possibly suffice for that. (In an open letter to Georgia Secretary of State Brian Kemp, Purpura’s fellow activist Donald Laster points out that Congress has tried to change the definition of “natural-born citizen” many times over the last 50 years. It has tried eight times in the last six years. All these attempts have failed.)
A constitutional lawyer reacts
Mario Apuzzo, of Jamesburg, NJ, has doubted the Obama eligibility claims since 2008. The night that Judge Malihi decided the Obama eligibility challenges before him, Apuzzo reacted almost at once. He said that “[n]either fact nor law” could support Malihi.
First, Apuzzo observed that Malihi had no evidence to support a finding that Barack H. Obama was in fact born in the United States. Obama never introduced any, and neither did his attorney. (Neither man even showed up for the hearing.) Orly Taitz introduced evidence to the contrary. Malihi found this “of little probative value” and “insufficient.” Result: Malihi merely presumed that Obama was born in the United States, though no one actually showed this. (In an administrative case, like one of these, a court does not presume to find for the defendant. Instead, the court decides between plaintiff and defendant by a preponderance of the evidence. That means that one side or the other must offer evidence that is more convincing and more likely to be true. Because the defense offered no evidence, the plaintiff should have prevailed.
Judge Malihi has not made any findings of fact concerning the question of where Obama was born. Obama the candidate wants to be President again. Under Article II, Section 1, Clause 5, Obama has the burden of proof to conclusively prove that he is a “natural born Citizen.” As part of that burden, he has to conclusively prove that he was born in the United States. Neither Obama nor his attorney appeared at the hearing to present any evidence on the issue. Judge Malihi found the plaintiffs’ documentary evidence to be insufficient for whatever purposes it could have been used. Nor did he find that that evidence, which includes a paper copy of the computer scan of Obama’s alleged long form birth certificate, to be sufficient to prove that Obama was born in Hawaii. We can see from the exact words used by Judge Malihi that Obama has failed to carry his burden to conclusively prove that he was born in the United States.
Second, Apuzzo flatly rejected Malihi’s reasoning from Ankeny and Kruse v. Governor of Indiana. First, no State precedent could possibly be controlling. States may not decide what a natural-born citizen is; they need Supreme Court precedent for that. Instead of looking directly for it, Malihi read the Ankeny case (which he misspelled Arkeny) and accepted its reasoning. According to Apuzzo, he shouldn’t have.
Ankeny did not even discuss what the Founders’ and Framers” original intent was in including the “natural born” Citizen clause in the Constitution. It is a rule of constitutional construction that we can learn what the Founders and Framers intended by a certain term they included in the Constitution by discovering what their purpose was for including the term in that document. But the Ankeny court told us what an Article II “natural born Citizen” is without examining the purpose for which the Founders and Framers included that clause in Article II, Section 1.
Apuzzo went on to say what the Founders and Framers meant by the phrase “natural-born citizen.”
[O]ur U.S. Supreme Court has given the exact “natural born Citizen” clause only one definition and that is a child born in the country to citizen parents. See Minor v. Happersett (1875); U.S. v. Wong Kim Ark (1898). This means that only a child born in the United States to two parents who are either Article II “natural born Citizens” or Fourteenth Amendment or statutory “born or naturalized . . . “citizens of the United States” is an Article II “natural born Citizen.” This is the consensus opinion of a “natural born Citizen” as provided by our U.S. Supreme Court and Congress since the beginning of our nation. Consequently, a “Citizen of the United States” is any citizen so made by Act of Congress, treaty, or other positive law such as the Fourteenth Amendment. Indeed, while a Fourteenth Amendment “born . . . citizen of the United States” may be born with dual and divided allegiance to the United States, an Article II “natural born Citizen” is born only within the sole, full, complete, and undivided legal, political, and military allegiance and jurisdiction of and sole citizenship in the United States.
Conclusion: Obama failed to show that he was even born in the United States. Even if he did, his father was a British colonial subject. For either reason, Apuzzo essentially urged Georgia Secretary Brian Kemp not to list Obama on the Georgia ballot.
Other activists react
Don Laster (see above) sent this letter to Secretary Kemp. He also told CNAV that Judge Malihi had “ignored the law” in dismissing the Obama eligibility challenges before him.
Once again an individual is protecting Mr Obama by failing to obey the US Constitution and use the real definition of the meaning of natural born citizen. Judge Malihi ignored U.S. Supreme Court rulings that have referenced the meaning of natural born citizen for more than 200 years. And his use of an Indiana State case in which the definition of natural-born citizen was distorted by twisting the source and misuse of U.S. Supreme Court rulings gives indication that the “fix was in.”
Nick Purpura gave a more pointed reaction: he speculated that someone bribed, blackmailed, or otherwise threatened Judge Malihi to make him rule as he did.
Orly Taitz made two posts on her site to urge interested people to call or send FAXes to Secretary Kemp, and not to Judge Malihi.
Obama eligibility challenge as part of Purpura v. Sebelius, parts one and two.
- Natural born citizen: open letter to Georgia Secretary Kemp
- Obama eligibility: flawed ruling
- Obama eligibility challenges multiply
- Health care reform bill re-argument
- Obama eligibility cases explode
- Obama eligibility cases go forward
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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.
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The issue here with this court is the fact that all on the defendents side including the president and all legal council decided to not show up for the hearing. Now if the defense had a credible case don’t you think they would have been there to present that case?
There was credible evidence presented to bring this case to trial but Obamas team and himself decided to ignore the court. The court can rule on default because of the actions or lack of on the part of the defense and Mr. Obama. If you had nothing to hide why did you hide?
This is such an epic fail. The Plaintiffs lost to an empty defense table and the judge was annoyed with the defense attorney. They were even offered a default judgment which they turned down so their claims can be judged on their merits. Their merits where presented uninterrupted and unchallenged.
AND THEY LOST.
The Birthers need better lawyers and a new argument. They need to start combing the constitution for some more potential issues.
Tell me this: how often does a plaintiff lose to an empty defense table? And more to the point: have you ever heard of a judge doing that? Has it ever occurred to you that this judge might not have followed procedure?
Have you considered the Lawyers are incompetent and the agreements are well just wrong?
I am sure all that will be reviewed in the appeal. I predict you will not agree with results from the appeal.
That won’t hold. It’s just too pat. The only people who agree with the result are those who wanted it. Nobody else who knows any law sees the slightest justice in it.
This is not the end. No matter what that judge said, a State court cannot be controlling on the courts of another State, and certainly not on the courts of all States.
“The only people who agree with the result are those who wanted it.”
And funnily enough, the only people who disagree with it, are the birthers. In fact, from scouring the web, I have yet to find a single non-birther who is even commentating on the finding. That in itself should tell you something.
And if you think the judge is corrupt, then open a case against him. But to insult the bench like that, is childish and petty.
Comunists don’t! Constitutionalists do!
Communism built on sand. Constitution built on God’s rock.
arguments are well just wrong?
Yes I know this is not the end. The Birthers track record is bad they need a game changer. The Lawyers are bad the arguments are weak. The election is near do the Birthers have anything new to offer up?
We have discovered a thoroughly corrupt judiciary. How’s that for a game? Don’t you care?
Do you have Proof?
If you do not think you are getting a fair shake in the courts why don’t you take it to the streets. Get out of the blogosphere and convince the voting public that Obama is not eligible.
Is that a promise?
All I am trying to say is the current track the Birthers are on is not working. If you feel so strong about this issue get off of this blog and start a grass root effort to convince the public that Obama is not eligible.
I of course will not be on board as I am convinced that Obama is eligible.
Sure, you are. What you really mean is that you want Obama to continue to hold office as President.
“I want a shortcut, Sidney. And I don’t care whose property I cut across, if you catch my drift.”—Christopher Reeve, as Clifford Anderson, in Deathtrap.
It won’t work that way.
Is the current Birther campaign about trying to get the constitution interpreted in what they believe is the correct way or is it just trying to get Obama out of office?
What do you think? Both!
If a Natural born citizen gets artificially inseminated with foreign sperm and the resulting child never meets the father is that child a naturally born citizen?
No. Such a child is of unknown allegiance. The whole point of natural-born citizenship is to leave absolutely no doubt of allegiance. In time, I, or my allies, might bring you to understand that.
You should be able to answer the question yourself. After all, the definition of natural born citizen has been know for more than 200 years.
The definition of natural born citizenship is “a child born in the country of parents who are citizens.”. This definition has been referenced both historically and by the Supreme Court numerous times. So under the scenario you specified is the child a natural born citizen based upon the definition referenced by the Supreme Court since at least 1814? The answer should be obvious to anyone who honestly looks the definition of natural born citizen.
Your definition is so robust. Lets say that a US couple are unable to conceive so they us a non-US citizen as a sperm donor and have the child conceived via IVF, it is implanted into the US citizen mother and she given birth naturally in the US. Is that child an natural born citizen? What happens if they also us a donated non-US egg, although it still contains the US citizen mothers nuclear material?
See how utterly useless a fixed two hundred definition is?
Ok, three things come to mind:
1. Where’s the opinion of an independent Constitutional expert? The one you quote “has doubted the Obama eligibility claims since 2008” which hardly makes him an unbiased source. Given your reaction, it’s hardly surprising he’s against the ruling too.
2. How do we go from “What you call “a friendly venue” is actually a judge willing to—well, judge. Sorry if you don’t like a judge who doesn’t rule according to your pre-determined conclusions, but that’s the way it is.” to “We have discovered a thoroughly corrupt judiciary.”
That is an amazing 180 you’ve just turned there. Because the decision went against you, because the evidence led was flawed and inconsequential. But to throw and tantrum on the floor garners you no respect.
3. Once again, this just demonstrates that the birthers aren’t interested in justice. You had your day in court, the decision went against you and now you cry corruption? And now Taitz will scurry off to try and find another court… little knowing there is now a precedent on the books. I ask again, how much is she making off the birther movement?
To use your own words against you Terry: Sorry if you don’t like a judge who doesn’t rule according to your pre-determined conclusions, but that’s the way it is.
You seem to have moved from sensible journalism to full-on conspiracy nut. Repeating allegations that the judge might have been bribed and that the judiciary is “corrupt” without any evidence is an astonishingly low blow. It smacks of sour grapes.
The fact – now supported in several judgments – is that Obama is eligible to be president. In November, you will see that a majority of the US population agrees too.
When I develop clear and convincing evidence of a fix, I am in honor bound to report it and characterize it as such.
But I don’t expect you to understand. My ancestors had to go to war against yours over just such a “fix”!
You have no such evidence. None at all. You have what is commonly called “an opinion”.
Your arrogance is astounding. The case that Obama is not eligible is so weak it even prevails when its opponents don’t even bother to show up. You have lost. It is over. Obama is president and you had better get used to it.
Paul Revere didn’t give up. Neither did George Washington. Maybe you wish he had, but I’m glad he didn’t.
Utterly irrelevant to the current situation. You are accusing a judge of being corrupt and you have NO evidence to support that accusation. That’s a pretty despicable thing to do.
Ian Lister: Regarding your February 5, 2012 at 12:16 am and February 5, 2012 at 7:53 am comments:
Have you ever understood “logic?” I ask, because your 2 response comments lack, logic.
Furthermore, the problem with CTAS – “Conspiracy Theorists of Denial, Arrogance and Silence” over Obama’s unconstitutional [bogus] “presidency,” fail to regard the United States Constitution as the rule of law for this great nation of ours.
Those of you who continually lapdog the false legitimacy of Obama’s usurpation of the presidency, do so, because you, the media and influential members of both political parties have foolishly cast off the restraints of constitutional law and legal precedence. Hence, you and they are like the hapless and kowtowing crowd, as portrayed in Hans Christian Anderson’s parable about the Emperor who had no clothes.
In short, you and many others have been hoodwinked by the blindness of political correctness and multicultural [false] principles. You convince yourselves that your own political value system is superior to the US Constitution and the specific requirements for US president and Vice president. Hence, you believe and practice the big lie.
No, it is you, Terry, and other birthers that disregard the constitution.
In most cases, your arguments have been so flimsy that they have been thrown out without having to waste court time: in the couple of cases in which a judge has decided to waste his or her time, your arguments have been found to be incorrect in all legal regards.
The lies you and people of your ilk keep stating are more proof that you aren’t interested in the truth. I won’t go so far as to state that you are only pursuing this issue out of racism, but I can see nothing to dissuade me from doing so.
Obama is your president. You, as people who claim to support the constitution, should support him.
But that’s the whole point. You have no “clear and convincing evidence of a fix” – what you have is a grumpy reaction to a court case that went against you.
Outside of your “feeling” that the judge is corrupt, what evidence do you have? Where re the bank statements showing strange deposits, where are details of secret meetings with Obama and his henchmen?
Sorry Terry, but “Wah! I don’t agree with the judgement!” does not constitute “clear and convincing evidence of a fix”
I see that “Slock” is up to his denial, arrogance and silence over Obama’s obvious unconstitutional (non natural born citize) “presidency.” He continues to be silent about the facts and reality of Constitutional precedence in this matter. But, on the other hand, he is quick (at every turn) to make fun of birthers’ efforts to have the US Constitution, enforced.
“Slock” says in his February 4, 2012 at 9:52 pm comment:
“Have you considered the Lawyers are incompetent and the agreements are well just wrong?…..”
I propose that “Slock” is asking the right question and directing it to the wrong party. He should have posed that question in the judge’s direction.
But, be that as it may, here is my “take” on the woefully wrong decision. Please, indulge me. [I come from a German background, and sometimes, our thinking is somewhat gutteral]:
This [so-called] “judge” is disgusting! He is a gutless coward! Suffice to say – we now know, who crawled up this unworthy judge’s ass. Or, maybe he’s been up Obama’s all along………
Wow! Spoken like a true man of God. So much for “love thy neighbor” pastor?
James K: Re: Your February 5, 2012 at 11:02 am comment:
Your reply retort is no surprise. I’ve heard it all before. Your response is that type of politically correct response that would deny Christians and Christian pastors their right of free speech, thus, denying our nation’s 1st Amendment.
Furthermore, your response almost makes me think that you have a certain expectation of Christian pastors, as if they should speak and behave in a certain way and not possess their own political opinions apart from their church’s denominational creedal stances.
Well, now, you’ve finally met an emeritus Christian pastor who does not meet your personal preconceived and selective view points and / or narrow criteria. Live with it. If I have an opinion (and, I certainly do), and if it isn’t holy enough for you, then, too bad.
No where in the US Constitution does it exempt Christians and Christian pastors from free speech, thus gagging them from speaking their mind, and participating in our democratic Constitutional Republic.
Wrong. I have no problem with your right to free speech. I am concerned, however, that a man in your position would resort to such potty mouth tactics, especially on a public forum.
Not to mention I wonder what the reaction would be if we were to accuse a conservative of “crawling up somebody’s ass?”
Also, to use the “both parents must be naturally born citizens” probably results in most of the population being excluded.
For example: If one of X’s great-great grandparents was an immigrant, then the great-grandparent was not a naturally born citizen. Automatically then, the grandparent – born to a non-naturally born citizen is also one, ditto the parent, ditto the child X, because all are born to at least one non-naturally born citizen.
In other words Terry, if at any point in your family tree, somebody married an immigrant, then you yourself are not a naturally born citizen, by your own definition.
You are mistaken. “Both parents must be citizens at the time of birth.” That’s the point.
No, that’s the point you would like it to be. The point is “born in America” and that is the current legal standing, until Taitz appeals or finds a friendlier courtroom than this one.
Also, you still haven’t answered my earlier question – how much is Orly Taitz making out of this? I think that information should be disclosed.
Wow – some of the commentary above is dancing on the line of family-friendly wording, and it’s surprising given the source.
Anyway, here’s a question for Terry, Mr. Purpura and Mr. Laster – If McCain had won in 2008, would we be reading today about your constitutional outrage and grass roots challenge to have him declared ineligible to hold office, since he’s also not a natural born citizen as you define it?
Somehow I doubt it.
You’d think that when someone who called himself a conservative worked with a Republican Congress for six years to turn a national budget surplus into a record deficit, there’d be even more outrage than what’s been expressed in the last three years.
Nope, nothing but silence from the Right when the Right was in charge.
Dick Cheney could proudly say that deficits don’t matter, warrantless wiretaps are okay, and that was just fine with Constitutional Conservatives and defenders of fiscal discipline.
So the judge you respected a week ago has ruled against the birthers based on the law, and because of that you’re publicly accusing him of corruption? Expressing outrage and frustration is one thing, but making accusations of criminal conduct is another. If you really believe that, then how about you, Mr. Purpura and any of your CnAV associates who agree with that back that up with action and file a formal complaint with the proper authorities in Georgia. To paraphrase recent words on this site though, “You do this at your own peril”.
I wholeheartedly endorse this splendid post.
The issue would probably not have made it into the public consciousness since the issue was brought up originally by Hillary Clinton’s Presidential campaign and the attacks on the people challenging both Senator McCain’s and Mr Obama’s eligibility would probably not have kept going on. Keep in mind it came to my attention and I started my research on the issue BECAUSE of the constant attacks on people challenging Mr Obama’s eligibility. It got me curious about the issue – after all “where there is smoke there is fire” generally. Mr Obama’s supporters fanned the flames. They let the cat out of the bag so to speak by their own actions. So now people, like myself, are aware of it and attempting to restore Constitutional rule versus the “do it they way we want” rule we currently have. This is whole point of what got the TEA Party movement started – people became aware of the issues.
As for the budget it is always important to remember that the Republicans had nominal control of Congress. And, I at least, was opposed to the excessive spending. But make sure the blame and credit is put where it belongs. Both Parties have failed to control spending. But both Parties are under the control of what I call Progressive/Marxists. These are people who believe the State is supreme and they are entitled to rule. These people also want to impose Socialism and don’t care they are destroying the economy. My personal view from examining history is that we are headed for “The Greater Depression”. If one looks at Greece, Venezuela, Argentina and various other countries we can see where the US is headed and the consequences.
And don’t let the Progressive/Marxist controlled media confuse the issues. The TEA Party movement and conservatives attack and criticize the Republicans as well for the actions. The media plays up the attacks on the Democrats in order to foster an appearance of partisanship and “onesidedness”. And the Republican Party is doing its best to co-opt the TEA-Party movement. The Democrats, or rather Progressive/Marxists are very good at the “I am being victimized” game and distorting what is said.
By way of example consider when Bush-43 presented an idea for helping deal with Social Security’s solvency issue in a State of the Union speech. He proposed a variation of an idea present by Leon Penatta in the 1990s. Allow individuals to have the option to put 2% of the 15% FICA tax into an account in the Social Security fund that they could invest, with limitations, and pass on to the heirs. When Nancy Pelosi gave her “rebuttal” nothing she said corresponded to what Bush-43 presented. She out-right lied and the media played up distortions and lies as fact. I had listened to both the speech and “rebuttal” and had been taking notes. So beware – make sure the information being presented is correct – regardless of the source. As Regan said/pointed out – trust but verify.
Terry Hurlbut seems to miss the point of this case and every case that Orly Taitz has brought. The Washington Generals defeat the Harlem Globetrotters more often than Orly taitz wins any legal argument.
The reason she lost to an empty table in front of a Judge who was inclined to grant her motions is because there is no law behind her motions.
You are mistaken that both parties must be citizens at the time of birth, no matter how many times you quote it.
If you are a lawyer, join Orly Taitz and form the world’s worst firm.
Every judge everywhere is in a vast conspiracy to allow Obama to be president? With the Roman Catholic SCOTUS of Obama haters? Are you unable to think, or simply delusional on this matter? This is a great joke even for sane conservatives.
The reason Obama is a “natural born citizen” is because he was born in Hawaii. Anyone born here is a citizen. You can change the law, as many GOPers want to in order to avoid “anchor babies”, but the very fact they realize the law itself would need to be amended is because by soil, “Born here, Natural Born Citizen here”.
As the sat, and why the Judge ruled for an empty table over your cause, and every American Justice has everywhere:
“The Fourteenth Amendment commands that “[a]ll 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.”
“This was clarified by the Civil Rights Act of April 9, 1866, which provided that ‘All persons born in the United States and not subject to any foreign power are declared to be citizens of the United States.'”
You show a serious lack of understanding of the issue and the types of citizenship that a person can have. A “natural born citizen” is not the same as “citizen”. Example : “A” may imply “B” but “B” does not imply “A”. A person can be a citizen but not a natural born citizen. A person who is naturalized is a citizen but not a natural born citizen. The definition of natural born citizen is a person born in the country of parents who are citizens. Amendment 14 and Article 1, Section 8, Paragraph 4 can produce citizen by what is called “Positive Law”. That is Ark was a citizen under Amendment 14. He was not a natural born citizen since his parents were not citizens when he was born. But he was a citizen since his parents were immigrants and at birth he was subject to the jurisdiction.
Citizen, citizen, citizen, NOT Natural Born Citizen! The ONLY time natural born citizen is used is under A2, S1, p5 as a requirement for President! Put there to prevent anyone with allegiance to any other country from becoming POTUS. If you can’t see that Obama has allegiance to all foreign countries you are just not honestly reviewing the current facts. Daddy was a Kenyan Brit that got himself deported. The British Nationality Act of 1948 caused baby Obama to be born a British Subject under his British daddy’s countries law. If you think Obama can be eligible under A2, S1, p5, you believe a man born a British Subject can be eligible under the reasoning of John Jay! This is exactly what John Jay wanted to prevent! A British Subject getting elected our Commander in Chief! Look at this as John Jay would look at it! The only thing you will see is Obama is not eligible! A2, S1, p5 has never been amended! No Judge, Jury, Court, Law, Bill, Senator or Congressman can change the Constitution. A2, S1, p5, still means exactly what it meant 200 years ago.
Obama was indeed born a citizen of the United Kingdom and Colonies (CUKC) under British law, by virtue of his descent from a Kenyan father at a time when Kenya was a British colony, but lost CUKC citizenship and became a Kenyan citizen when that country gained independence in 1963. However, Kenya’s constitution prohibits dual citizenship in adulthood. Obama therefore automatically lost his Kenyan citizenship on his 23rd birthday, in 1984, by failing to formally renounce any non-Kenyan citizenship and swear an oath of allegiance to Kenya.[85)
I would just like to say, I live in the United States of America not the United States of Switzerland.
DinsdaleP: Re: Your February 5, 2012 at 9:22 am comment:
You mentioned in your comment that the judge “has ruled against the birthers….” What he did, was not so much rule “against the birthers” but rule against our US Constitutional requirement that the president be a “natural born citizen.” He not only ruled against the Constitution, but against US legal (established) precedent:
“All That Is Wrong with Georgia State Judge Michael M. Malihi’s Decision that Putative President:”
link to puzo1.blogspot.com
Let’s have a look at your constitution that’s been abused shall we? Oh look, line 1 of 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.”
link to law.cornell.edu
Was Obama born in the US? Yes.
Is he subject to the jurisdiction thereof? Yes. Nothing about his father being a black man from overseas. It applies only to Obama, and the answer is yes, because he was not the son of a diplomat or minister. Ergo, there is no case to answer, and you can go from court to court and waste more money, and make Orly Taitz rich and the result will be the same.
It’s funny, it doesn’t mention anything about the parents, no matter how much the birthers want it to.
Based on the 14th amendment, please explain how the ruling destroys the constitution?
You make the same mistake that the court in Ankeny v. Gov. Ind. made: failure of statutory construction.
Article II, Section 1, Clause 4: “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.”
Amendment XIV, 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.”
Here is your problem: “citizen” and “natural-born citizen” are not the same thing. The second is a subset of the first. A highly specific subset.
Now all that Amendment XIV does is to include “all persons born or naturalized…and subject to the jurisdiction” in the broad class of “citizens.”
It does not redefine what a “natural-born citizen” is.
That definition is: one born in-country *to two parents, both of whom were citizens at the time of birth of the subject person.*
“Natural-born citizen” is a term out of natural law, and one must resort to that for the definition. No statute, nor even an amendment to the Constitution, can change that. That would be like trying to change the value of pi.
Which is what that Ankeny court did. That decision is erroneous and requires correction at the earliest possible opportunity.
Where in US law is that definition of natural born citizen? Outside of the sayings of de Vattel, which have no bearing on US law.
Where in US natural law is “natural born citizen” defined as “to two parents, both of whom were citizens at the time of birth of the subject person.” It doesn’t help saying “But de Vattel meant…” unless it’s specifically defined somewhere in US law, de Vattel’s writings are meaningless. There must be a specific stature or clause somewhere, otherwise we’re just floating around in wishful “But the letter was heartfelt!” territory – and that’s just bad lawyering.
Not to mention the SCOTUS cases that set precedent. Also, I believe there are certain states that have tried to change the value of pi?
The Venus (1814). That case cites Vattel. And no case since has specifically reversed that.
Yeah, The Venus was an admiralty case, not a citizenship case, and Vattel wasn’t cited in a majority opinion; it was a seriatim opinion, and dicta at that.
The Venus is just one of the earliest. Anyone who takes the time to look finds the definition is from Vattel’s Law of Nations. And history teaches is that is the definition they meant and the Supreme Court has verified it numerous times.
Well, Citizens United flew in the face of about a century’s worth of precedent, but that one didn’t seem to bother the editorial staff here too much unless I missed something.
The approaches taken by Taitz, Purpura, Laster and others have not worked, and their arguments have been rejected and/or dismissed out of hand across multiple venues.
There’s nothing wrong with fighting the long, good fight for a worthy cause, but the entire birther movement does not seem as focused on a principle as much as an individual. I doubt this outrage would have occurred if McCain had won, and the silence of the right as Republicans turned a surplus into a record deficit over the first 6 years of the Bush Administration would back that contention up.
Ok, so I looked up the Venus (link to supreme.justia.com) – seems it deals with “If a citizen of the United States establishes his domicile in a foreign country between which and the United States hostilities afterwards break out, any property shipped by such citizen before knowledge of the war and captured by an American cruiser after the declaration of war must be condemned as lawful prize.”
As for Vattel, who is quoted as “though not very full to this point” – that’s something that seems to be left out – says:””The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens.”
Nowhere do the words “natural born citizen” appear, so I’m guessing that somebody is putting words in Vattel’s mouth.
Also, what you’re overlooking is the fact that the judge heard all the witnesses and evidence Taitz put forward and dismissed them as unreliable. Now, if nothing else, that should tell you you have a very weak case.
What you are missing is that Law of Nations gives a very specific definition of a specific type of citizenship. He states this is the preferred type of citizenship. He then goes on to point out that citizenship can be acquired in other ways.
The Venus case, and others, cite Law of Nations definition of natural born citizenship. They cite the meaning of the term as one does from a dictionary. The Justice translated the French directly. In Minor they cite the definition and people chose to read the ruling wrong and ignore that the 1790 law cited was repealed in 1795. Do the rest of the research.
“The Justice translated the French directly”
Or so the birthers would have us believe. Also, last time I checked, Law of Nations has no bearing on US law. Please cite the SCOTUS cases you claim “have verified it many times,” because all the SCOTUS decisions I’ve found dealing with the 14th Amendment, deal with birth only.
Also, I see the case in California was thrown out (link to wnd.com)
So, either there’s one hell of a conspiracy and crooked judiciary going on, or it’s about time the birthers grew up and realised there is no case, and they’ll have to put up with the black man in the White House for another 4 years.
Unfortunately, I know which option they’ll choose…
Just start with these.
The Venus, 12 U.S. 253 (1814)
Shanks v. Dupont, 28 U. S. 242 (1830)
Scott v Sanford, 60 U.S. 393 (1857)
Minor v. Happersett (1874) 21 Wall. 162, 166-168
Perkins, Secretary of Labor, et al. v Elg. 59 S.Ct. 884 (1939)
Elk v Wilkins, 112 U.S. 94 (1884)
The definition of natural born citizen is referenced in these rulings as well as what Amendment 14 states in the post Amendment 14 rulings. The issue in all of these rulings distinguishes between the types of citizenships. And the earlier rulings cite Law of Nation as the source of “natural born Citizen” in Article 2, Section 1. There are basically 3 types of citizenships.
Natural born being a person born in the country of parents who are citizens. This is is the most specific and has no possibility of another citizenship at birth (in most cases – Spain does not recognize a person renouncing Spanish citizenship).
Naturalized being a person who becomes a citizen by swearing allegiance of the country. That is the classic immigrant status. Basically done under the auspices of Article 1, Section 8, Paragraph 4.
Then the other variations by positive law (Amendment 14, one parent, etc.) often called native citizenship. Both Barack Obama and John McCain fall under this.
The Courts have been cowards and have been avoiding the issue. Most of the cases have been dismissed on procedural grounds or other made up grounds. And it is important to remember that if Hillary Clinton suit had been properly heard both Mr Obama and John McCain would have been removed from the ballot.
And I have read the cases.
The birthers lost in Virginia too. This is what the judge wrote. “It is well settled that those born in the United States are considered natural born citizens”.
Donofrio,Taitz, and Apuzzo are not finding much judicial love.
link to scribd.com
To suggest that the questions at issue in The Venus bear any relation to who constitutes a “national born citizen” in the context of Article II Section 1 is just wrong. The Venus explores the extent to which a person can domicile himself in a country that he is not a citizen of, and what the legal consequences of doing so are — in terms of property rights — when the person’s country of citizenship and country of domicile go to war.
Yes, The Venus repeats Vattel’s statement: “The natives, or indigenes, are those born in the country, of parents who are citizens.” But just because you’ve decided that the definition of natural born citizen derives from this statement, that doesn’t mean that any decision that repeats the statement automatically represents an endorsement of your definition of natural born citizen. This is particularly true of the usage in a case like The Venus, which could not be any less concerned with Article II Section 1’s usage of “natural born citizen.”
It’s also worth noting that the portion of The Venus that quotes Vattel’s reference to “the natives, or indigenes” isn’t even in the majority opinion. It’s quoted by Justice Marshall, who concurred in part and dissented in part.
Finally, the idea that we use Vattel and/or international law to provide a frame of reference for Article II, Section 1’s use of “natural born citizen” is, also, wrong. Where ambiguities arise or a term that the Constitution uses is not specifically defined within the document itself, it is read and interpreted in light of English common law:
Smith v. State of Alabama, 124 U.S. 465, 8 S.Ct. 564 (1888) – “There is, however, one clear exception to the statement that there is no national common law. The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”
This is a basic tenet of constitutional law that the Supreme Court has affirmed time and again. U.S. v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456 (1898); Schick v. U.S., 195 U.S. 65, 24 S.Ct. 826 (1904); State of South Carolina v. U.S., 199 U.S. 437, 26 S.Ct. 110 (1905); Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524 (1917); Ex Parte Grossman, 267 U.S. 87, 45 S.Ct. 332 (1925); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554 (1963); Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680 (1991) etc etc
If you took the time to do the actual research you would realize that Law of Nations is what was used by the writers of the US Constitution and that the Federal system is not based on English Common Law. Even Ben Franklin own correspondence confirmed it. The Venus and others Supreme Court rulings involving citizenship issues cite Law of Nations as the source of the various definitions.
You are trying to argue that the dictionary doesn’t define the meaning of words. One would not reference a dictionary on car mechanics when one is referencing medical terms. And history teaches us, as does the Venus, that Law of Nations is the dictionary to use with the US Constitution. Amendment 14 and Article 1, Section 8, Paragraph 4 citizenship is not the same as natural born citizenship.
When one reads the various rulings one finds the Courts reference English common law for State issues and as in Wong give a long history of common law. But Ark was not a natural born citizen. He was an Amendment 14 citizen as are children of immigrants.
You found a heart felt letter from Ben Franklin. You might make the judge laugh at best.
Can we dispense with this absurd notion that you somehow have a monopoly on the concept of conducting legal research? I don’t disagree with you because I haven’t looked at your research or done my own (in fact I have, on both accounts). I disagree with you because your method of research seems to entail a great deal of distorting authority until it supports your theory, while simultaneously ignoring or dismissing as “wrong” authority that doesn’t.
Please note that I never once suggested that the Federal “system” is based on English common law. Rather, I stated that the Supreme Court has consistently held that, where ambiguities arise in the Constitution, or it uses a term that is not specifically defined within the document itself, it is read and interpreted in light of English common law. There’s a difference between saying that the entire federal system is defined by English common law and saying that we refer to English common law in the rare and very specific instance where we need to give meaning to the original text of the Constitution.
I assume that your reference to Ben Franklin’s correspondence specifically refers to the letter he wrote to Charles Dumas, in which he thanks Dumas for the gift of three French-language copies of “The Law of Nations” and implies that some members of Congress had read it? That is, the letter that was written in 1775? Twelve years and one entire Revolutionary War before the Constitution was even drafted? Given those insignificant little details, the notion that the letter “confirms” that the Law of Nations is what was used by the writers of the US Constitution borders on outlandish. In 1775 James Madison, the Father of the U.S. Constitution, was still five years away from even becoming a member of the Congress that I believe Franklin was referring to.
I’m not trying to argue that the dictionary doesn’t define the meaning of words. I’ve seen you use this turn of phrase as a retort several times now, and I have to confess to being somewhat perplexed as to what you even mean by it. As near as I can tell, it seems to be a catch-all that you employ when you’re unhappy with people who voice their disagreement with how you interpret a case. But I don’t need to argue that the dictionary doesn’t define the meaning of words in order to point out when you misconstrue them. And, to the extent that you claim that The Venus teaches us that “Law of Nations is the dictionary to use with the US Constitution,” you’re misconstruing the case. No Constitutional issue was raised in The Venus, and the Court thus did not interpret the Constitution in deciding it. Thus, the Court’s decision in The Venus lends absolutely no support to any claim that Law of Nations is relied on to interpret the Constitution.
To add to the excellent post above, the term “indigènes” doesn’t normally mean “natural born citizen” and the decision to translate it as such POST-DATES the Constitution. The English language versions up to that point include the phrase “natural born citizen,” so claiming that Vattel somehow influenced this particular aspect of the Constitution is laughable at best.
What you seem to be ignoring is that the Supreme Court has pointed out that the definition is rooted in Law of Nations. In Minor and Elg they pointed out specifically the conditions of natural born citizen. Elg was specifically recognized as natural born citizen because she was born in the US of US citizen parents even though they later returned to Sweden and renounced their citizenship.
Venus and other cases recognize Vattel as the source of the definition. And history teaches this is the source of the definition. Even the Minor case specifically states what a natural born citizen is. In the Ark case, while there was a host of history given, Wong Kim Ark was declared a citizen by Amendment 14. The case also re-states Vattel is a variety of places. Ark was never declared a natural born citizen. Though there was ample opportunity to. He was simply declared a citizen.
What you keeping try to do, in my opinion, is change the dictionary that defines the terms. And the Courts keep referencing British Common law which most of the States use but history and many Supreme Court rulings show does not apply the Federal Government and US Constitution. Remember, we rejected the monarchy system which is the core of British common law and created a Republic.
And I am slowly making my way through the various Supreme Court rulings but since justia.com and Public.Resource.Org were caught to be altering Supreme Court rulings related to citizenship many of the online sources can not be trusted to be accurate.
Virginia Minor herself had citizen parents, so answering the question of the children of aliens was not necessary to decide this case. The Court explained:
“For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens”
The Court stated one “sufficient” condition for a natural born citizen, but it explicitly said that it did not consider other possible conditions. This is why Minor v Happersett does not define the term natural born citizen. Later, in 1898, the Court decided the question of the children of aliens in the case of United States v. Wong Kim Ark.
Sorry for the earlier double post. It did not look like my post was posted
I was going to bring up the timeline of Ben franklins letter but CJT1101 already had.
I would like to add a little more info
The letter was written in 1775 so let’s see what the congress was doing in 1775.
“The second Congress managed the colonial war effort, and moved incrementally towards independence, adopting the United States Declaration of Independence on July 4, 1776. By raising armies, directing strategy, appointing diplomats, and making formal treaties, the Congress acted as the de facto national government of what became the United States. With the ratification of the Articles of Confederation, the Congress became known as the Congress of the Confederation.”
Well in light of these activities it makes sense that they would have international law reference materials such as Vattels THE. LAW OF NATIONS. OR. PRINCIPLES OF THE LAW OF NATURE APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS.
Using this letter as proof for using Vattel’s Law of Nations for interpreting the constitution natural born citizen clause is out of context and just wrong.
I was going to post something about the timeline of Ben Franklin’s letter but CJT1101 already has.
I do want to add some additional info.
Ben Franklin’s letter was written in 1775 so let’s see what congress was doing in 1775.
Here is what I found
“The second Congress managed the colonial war effort, and moved incrementally towards independence, adopting the United States Declaration of Independence on July 4, 1776. By raising armies, directing strategy, appointing diplomats, and making formal treaties, the Congress acted as the de facto national government of what became the United States. With the ratification of the Articles of Confederation, the Congress became known as the Congress of the Confederation”
In light of these activities it makes sense that they would have Vatal’s THE. LAW OF NATIONS. OR. PRINCIPLES OF THE LAW OF NATURE APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS on hand.
To use Ben franklin’s letter as proof that this is the source of the definition of the natural born citizen in the constitutionis out of context and wrong.
The 14th amendment debates have Lyman Trumbull, co-author, of the 14th amendment’s citizenship clause, on record EXPLAINING his amendment to the bill, because others were asking what “subject to the jurisdiction thereof” meant, and HE, the one who WROTE the amendment to the 14th amendment, clearly states:
“The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘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.”
link to memory.loc.gov
And the Civil Rights Act (also authored by Trumbull), passed by the same men, months earlier, confirms my claims and validates Trumbull’s words, in the debates…
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States;”
link to digitalhistory.uh.edu
And the Naturalization Oath of Allegiance further supports my claims…
“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen;”
I mean it’s clear as day that a citizen (natural born or naturalized) must have full allegiance…
Are they saying that a person born to an immigrant with foreign allegiance, that comes over must denounce all foreign allegiance, but a child born here to an immigrant with foreign allegiance, is not required to have full allegiance? It makes no sense and my proof and sources makes 100% sense, so why is it ignored and called irrelevant? Yet, when the left say, the 14th amendment grants Obama citizenship, people agree with them without a single fact?
MANY TOLD ME THAT DEBATES CAN’T BE USED IN COURT, BUT I FOUND PRECEDENT THAT THEY CAN!
(Go to page 112 at the link AND READ) link to scholar.google.com
Justice Gray talks about how the 14th amendment debates prove what the founders intent was…
“Language could not express that purpose with more distinctness than does the act of 1866. Any doubt upon the subject, in respect to persons of the Indian race residing in the United States or Territories, and not members of a tribe, will be removed by an examination of the debates, in which many distinguished statesmen and lawyers participated in the Senate of the United States when the act of 1866 was under consideration.”
He even adds into his opinion quotes from Trumbull during the debate…
“Of course we cannot declare the wild Indians who do not recognize the government of the United States, who are not subject to our laws, with whom we make treaties, who have their own laws, who have their own regulations, whom we do not intend to interfere with or punish for the commission of crimes one upon the other, to be the subjects of the United States in the sense of being citizens. They must be excepted. The Constitution of the United States excludes them from the enumeration of the population of the United States when it says that Indians not taxed are to be excluded. It has occurred to me that, perhaps, the amendment would meet the views of all gentlemen, which used these constitutional words, and said that all persons born in the United States, excluding Indians not taxed, and not subject to any foreign power, shall be deemed citizens of the United States.” Cong. Globe, 1st Sess., 39th Congress, p. 527.”
Again Gray says “IN HIS OPINION”:
“An examination of the debates in Congress, pending the consideration of that amendment, will show that there was no purpose, on the part of those who framed it or of those who sustained it by their votes, to abandon the policy inaugurated by the act of 1866, of admitting to national citizenship such Indians as were separated from their tribes, and were residents of one of the States or of one of the Territories, outside of any reservation or territory set apart for the exclusive use and occupancy of Indian tribes.
AS THE DEBATES OF THE 14TH AMENDMENT, WILL SHOW TRUMBULL’S INTENT, FOR THE CITIZENSHIP CLAUSE OF THE 14TH AMENDMENT, which clearly says:
“The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘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.”
link to memory.loc.gov
AND ONCE AGAIN Justice Gray:
“A careful examination of all that was said by Senators and Representatives, pending the consideration by Congress of the Fourteenth Amendment, justifies us in saying”
THE DEBATES, BY PRECEDENT, ARE RELEVANT AND ARE THE ONLY THING THAT WILL WIN THIS CASE AND TAKE NATURAL BORN CITIZEN BACK TO IT’S ROOTS! THIS WILL ALSO MAKE A LOT OF PEOPLE WHO THOUGHT THEY WERE CITIZENS, NOT!
You have not “found a precedent.” You have found a dissent. Justice Gray did write the majority opinion in Elk v. Wilkins, but none of the language you quote comes from that opinion; it’s all from Justice Harlan’s dissent. The problem with jumping directly to page 112, as you suggest people do, is that it makes it easy to miss the fact that the majority opinion has already been over for two pages at that point.
Regardless, I completely agree that congressional debate transcripts can be an important source of information when trying to discern legislative intent. They’ll only ever be considered persuasive — as opposed to mandatory — authority, but courts are still permitted to rely on them in the course of interpreting a given piece of legislation.
Nevertheless, to the extent you claim that “not owing allegiance to anyone else” doesn’t apply to persons who are born in the United States, of alien parents, I disagree. As an example, let’s use a man who was born in the U.S. to two illegal alien Mexican citizens, and has lived in the U.S all his life. For purposes of determining whether this man is an Amendment 14 citizen, I think we can both agree that he satisfies the “born or naturalized in the United States” prong of Amendment 14’s citizenship clause. But the question remains, is he subject to the jurisdiction of the United States? If we accept Trumbull’s definition, that question becomes, does the man owe allegiance to any country other than the United States? And I think the answer to that question is a straight-forward “no.”
To be clear: The man may well *feel* some (or perhaps even a great deal of) allegiance to Mexico. He might identify more closely with Mexico’s culture and values than he does with the culture and values of the United States. In fact under Mexican nationality law, if the man chose to he could return to Mexico at any time and remain there as a Mexican citizen. But none of this changes the fact that a man who is born in the U.S. and remains here does not *owe* any allegiance to Mexico, regardless of the citizenship of his parents. The man is not bound by Mexican law. He cannot be compelled to act by the Mexican government. By way of contrast, the man owes the United States his full allegiance. He can be prosecuted under U.S. law for any crimes he commits. He can be sued under U.S. law for any torts he commits. He is required to register for the U.S. draft and, if a draft is instituted, he can be required to serve in the U.S. armed forces. He is required to pay taxes to the United States (and the state in which he lives). In short, he is fully subject to the jurisdiction of the United States, and this, combined with the fact that he was born in the U.S., makes him an Amendment 14 citizen. (Contrast this man with a foreign diplomat’s child who is born in the United States. This child also satisfies Amendment 14’s “born or naturalized in the United States” prong. But because the child shares his parent’s diplomatic immunity, he is not fully subject to the U.S.’s jurisdiction, and thus is not an Amendment 14 citizen.)
Trumbull’s own examples of people who are not subject to the jurisdiction of the United States show what he meant by the phrase — He refers to people who are not controlled by U.S. law, people who cannot be sued in court, people whom the U.S. makes treaties with, and Indians who are governed by their own tribal regulations.
At the very least, I think it’s clear that Obama is an Amendment 14 citizen by birth. Before anyone gets up in arms over this statement, I do acknowledge the school of thought that holds that it’s possible to be an Amendment 14 citizen by birth without also being a natural born citizen.
That’s great. Now show me why a judge should care what Trumbull thought “Natural-born citizen” meant.
“justia.com and Public.Resource.Org were caught to be altering Supreme Court rulings related to citizenship many of the online sources can not be trusted to be accurate.”
Sorry, but the only source for that appears to be a crazy lady over at link to examiner.com – that’s what all the other anti-Obama (and ONLY the anti-Obama blogs) are using as a source.
Where are the arrests? Where’s the court case?
Or is it just easier to cry conspiracy – why the judge throws out your case, it’s because he’s corrupt. When case history doesn’t support you, it’s because the records were altered.
And you wonder why people laugh at you?
There are other options.
I know some Lawyers use subscription online sources. Even some public libraries mostly in large metropolitan areas have law reference materials.