Tuesday, October 11, 2011

How Obama’s Enablers Mislead the Public on the Meaning of an Article II “Natural Born” Citizen

How Obama’s Enablers Mislead the Public on the Meaning of an Article II “Natural Born” Citizen


                                                By: Mario Apuzzo, Esq.
                                                     October 10, 2011


  You have got to love Obama’s enablers. They have a web site called, “A Place to Get the REALLY Right Answers About Natural Born Citizenship,” accessed at http://birtherthinktank.wordpress.com/a-place-to-get-the-really-right-answers-about-natural-born-citizenship/. Clearly, the title of this web site refers this web site, “Natural Born Citizen - A Place to Ask Questions and Get the Right Answers,” accessed at http://puzo1.blogspot.com/ , which I created in December 2008.

Before I start, I must advise you of two things: first, you will rarely find an Obama enabler who will ever admit that he or she is a lawyer (most of those who admit it have been outed by citizen researchers). The reason for that is that operating under the blanket of anonymity, they get free reign to say whatever they want without any legal or ethical accountability. And they have said some pretty bad things in the past until many of them were outed and so now they are “perfect gentlemen.” Hence, the first thing the owner of this blog tells us is that he or she is not a lawyer. Now it may be true that the owner of that blog is not a lawyer. But what about all the other enablers who feed at that blog under the cover of anonymity? So, we do need to ask ourselves whether these so-called “owners” are just straw owners who take on such tasks to provide cover for Obama’s enabler lawyers who operate in the background under the cloaking device of anonymity.

Second, before I started explaining that there is a difference between an Article II “natural born” Citizen and a Fourteenth Amendment or Statutory “born” Citizen, we hardly saw the clause “natural born” Citizen in the Obama enablers’ arguments. At that time, they were simply content with telling us that Obama was a “Citizen” of the United States or a “native-born citizen,” whether under U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the Fourteenth Amendment, or any Congressional Act. Now, no matter what case or statute they are speaking about, for these enablers its all “natural born” Citizen. The only citizens they have spared from this label are citizens who are naturalized after birth. I guess they figured that the clause would lose whatever little meaning they have given to it if they pushed it that far.

Let us now examine what Obama’s enablers are peddling on this blog. They must and do attack the Minor v. Happersett, 88 U.S. 162 (1875) decision on two fronts. First, they argue that the definition of a “natural-born citizen” given by the Court is dicta and therefore not binding precedent. But they are wrong. In Minor, the U.S. Supreme Court had to decide whether Virginia Minor, a woman, was a “citizen” in order to determine whether as a “citizen” she enjoyed a constitutional right to vote under the privileges and immunities clause of Article IV. So the Court reasoned that once she was shown to be a “citizen,” it did not matter that she was a woman, unless Missouri could still disqualify a woman from voting because being a “citizen” did not guarantee any person the right to vote. It does not matter whether the Court chose to say that Minor was a “natural born Citizen” or just a “citizen.” Either way, Virginia Minor would advance to the next step in the analysis which was whether as a “citizen” she had the right to vote which Missouri could not abrogate. The Court chose the “natural-born citizen” path. It thoroughly analyzed and considered what a “natural-born citizen” was and after saying that it is a child born in the country to citizen parents, found that Virginia Minor was a “natural-born citizen” and therefore also a “citizen.” After the Court told us what a “natural-born citizen” was, it then made the comment about there being doubts as to whether a child born in the country to alien parents was even a “citizen.” The Court said that it was not necessary for it to decide that question and it did not because Virginia Minor was a “natural-born citizen” which necessarily also made her a “citizen.” So the focus of the Court’s decision regarding citizenship was in defining who the “original citizens” and the “natural-born citizens” were. The Court did not and did not have to answer the question about who was a “citizen” under the Fourteenth Amendment which in the question that it raised involved deciding whether a child born in the jurisdiction of the United States but to alien parents was born “subject to the jurisdiction thereof.” We know that this latter question concerning who was a “citizen” under these circumstances was answered by U.S. v. Wong Kim Ark in 1898 which also confirmed Minor’s definition of a “natural-born citizen” and analyzed whether such a child was born “subject to the jurisdiction” of the United States under the Fourteenth Amendment.

So as we can see, Minor’s analysis and discussion about citizenship was central to the Court’s answering the question of whether Virginia Minor was a “citizen” which it answered by telling us that she was a “natural-born citizen” which automatically made her a “citizen” also. Hence, Minor’s discussion and decision on what a “natural-born citizen” is was central to the Court’s holding regarding citizenship (as I explained the other holding concerned whether voting was a privilege and immunity originally guaranteed by the constitution’s privileges and immunities clause) and not dicta.

Virginia Minor was not a naturalized citizen. Hence, the Court thoroughly discussed the definition of a “natural-born citizen” which it was compelled to do to decide whether Virginia Minor was a “citizen” and as such entitled to privileges and immunities under the Constitution one of which Mrs. Minor contended was the right to vote. The Court’s definition of a “natural-born citizen” was therefore essential to its holding that voting was not a privilege and immunity originally guaranteed by the Constitution and that Mrs. Minor, a woman, even though she was a “natural-born citizen,” did not have a constitutional right to vote. Minor’s definition of a “natural-born citizen” is therefore binding precedent which to this day has not been changed.

Second, Obama’s enablers attack the precedential definition of a “natural-born citizen” provided by Minor. To support their position, Obama’s enablers manipulate both the use of the word “born” and the meaning of the word “naturalized.” Regarding the word “born,” their definition of a “natural born” Citizen which is a child born in the United States and “subject to the jurisdiction thereof” does not include all the elements which should be included. When it comes to Obama, the element which they leave out is birth to citizen parents. They arrive at their truncated definition of a “natural born Citizen” by arguing that Minor v. Happersett did say that a child born in the United States of citizen parents was a “natural born citizen.” But they insist that there exists an ambiguity in the Court’s definition of a “natural-born citizen” because the Court did not say that a person not born in the United States of citizen parents was necessarily not a “natural born Citizen.” They add that the condition of being born in the United States of citizen parents was a sufficient condition, but not a necessary one. They add that the condition is not a definition even if Minor constitutes a precedent. They then conclude that persons born in the United States of citizen parents are “natural born citizens,” but that neither birth in the United States nor birth to citizen parents is required. They conclude that as long as one is a citizen at birth under the Fourteenth Amendment or any Act of Congress, even if born in the United States to one or two alien parents or born outside the United States to one or two citizen parents, one is a “natural born citizen. The fallacy of this argument lies in denying the well-established definition of a “natural born Citizen” and arguing that it is not a definition and then putting forth their own definition which is broader than the correct definition so that they can meet the broader definition (not requiring birth to citizen parents in the case of Obama).

The question is whether Minor’s definition of a “natural-born citizen” is ambiguous. The enablers’ argument that it is ambiguous and that it permits for other birth circumstances which do not exist in that definition is meritless. A definition is not ambiguous merely because it does not expressly rule out every possible other factual scenario which someone claims also fits under that definition. De Leon-Ochoa v. Att’y Gen., 622 F.3d at 353 (reviewing 8 U.S.C. § 1254a). The enablers do not tell us that not one U.S. Supreme Court case or Congressional Act in the history of our nation defines a “natural born Citizen” the way they do (i.e., as being any child born a citizen regardless of place of birth or citizenship of the parents) and that on the contrary, these sources (expect for the Naturalization Act of 1790 which is not relevant to Obama, did not support their position, and which was repealed in 1795) have always defined a “natural born Citizen” as being a child born in the United States to U.S. citizen parents. Hence, there is no ambiguity in this time-honored definition. On the contrary, the Minor U.S. Supreme Court has plainly spoken with affirmative language which comprises a definition on who is an Article II “natural born” Citizen. It has clearly set out by definition who is a “natural born” Citizen. Hence, anyone who does not meet that definition is necessarily excluded from that class of citizen.

Another approach that Obama’s enablers take to attacking Minor’s definition of a “natural born” Citizen is to say that we commit the logical fallacy of denying the antecedent. This fallacy is described as:
If A, then X.
Not A.
Therefore, not X.
This reasoning is fallacious, unless A is a necessary condition which in such case, the logic would not be fallacious. In other words, if A is merely sufficient for X to exist, the fact that A does not exists does not necessarily rule out that X can come into existence by some other factors, e.g. B or C. So if A is a bi-conditional which is expressed as “if and only if,” the logical expression presented would not be fallacious. For example, if Joe has a lot of land, then Joe is rich. Joe does not have a lot of land. Therefore, Joe is not rich. This is fallacious logic, for Joe could be rich by having a lot of gold. But if we said if Joe is breathing, then he is alive. Joe is not breathing. Then he is not alive. We do not question the correct logic of this statement. And it is correct because breathing is not only sufficient but also necessary. So what we are really saying is: “If and only if” Joe is breathing, then he is alive.

Obama enablers argue that we deny the antecedent when we say that under Minor, since Obama was not born to two U.S.-citizen parents, he cannot be a “natural born” Citizen. They add that two U.S.-parent citizenship is only a sufficient condition, and not a necessary one. But the logical error that they make in putting forth this argument is in denying that Minor gave us a binding definition of the clause “natural-born citizen” which affirmatively declared what such a citizen is. Hence, being a definition, the elements expressed are necessary conditions and not sufficient ones. Would these same Obama enablers say while reasoning under the Fourteenth Amendment that “subject to the jurisdiction thereof” is only a sufficient condition and that it is wrong to conclude that if someone is born in the United States but not “subject to the jurisdiction thereof,’ that that person could still be a “citizen of the United States” under that amendment? No, they would not make such an argument because they know that the Fourteenth Amendment provides an affirmative and declaratory definition of citizenship each element of which is a necessary condition to earning the right to have that national character. There is no difference with Minor’s affirmative definition of a “natural born” Citizen, but they deny that Minor put forth a definition, but accept that the Fourteenth Amendment does. There simply is no consistency or logic in how these enablers treat Minor in one fashion but then treat the Fourteenth Amendment in another.

Obama’s enablers then move on to Wong Kim Ark and say that it declared Wong a “natural born” Citizen and that since Obama meets the requirements of that case, he too is a “natural born” Citizen. But straightforward reading of the Wong Kim Ark case shows that it did not do any such thing. Here is the question presented as stated by Wong Kim Ark:

“The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a ‘citizen of the United States’ by virtue of the first clause of the Fourteenth Amendment of the Constitution” (emphasis supplied).

And here is the specific holding of the case:

“The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a ‘citizen of the United States.’ For the reasons above stated, this court is of opinion that the question must be answered in the affirmative” (emphasis supplied). Id. at 705.

We do not see anywhere in the question presented or the holding any reference to “natural born” Citizen. The Court could not have been clearer by telling us twice that it was only deciding whether Wong was a “citizen of the United States.” We clearly see that the case only concerned itself with whether Wong was a “citizen of the United States” under the Fourteenth Amendment (more on the Fourteenth Amendment below). After all, Wong only needed to be a Fourteenth Amendment “citizen of the United States” to avoid being excluded from the United States under the Chinese Exclusion Acts which prohibited persons of the Chinese race, and especially Chinese laborers, from coming into the United States. He did not need to be an Article II “natural born” Citizen which under our Constitution and Congressional Acts is relevant only to the question of whether one is eligible to be President or Vice-President.

The lack of any reference to “natural born” Citizen in Wong Kim Ark’s question presented and holding is critical given that in the opinion itself, the Court said that “[the child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.” Hence, the Court held that Wong, a person born of aliens in the United States, was a “citizen,” since he was “as much a citizen as the natural-born child of a citizen." Indeed, the Court acknowledged that one type of national character is a “citizen,” who is born in the country to “an alien,” and the other type is a “natural born citizen,” who is born in the country to “a citizen.” Under the then-prevailing notion of merger of the wife’s citizenship into that of the husband, “an alien” and “a citizen” actually meant “aliens” and “citizens,” for no other interpretation would make sense. Without such a reading, the two birth circumstances would always give the same result, for if one is born to “an alien,” parent (just one parent), then one would also be born to “a citizen” parent (the other parent). Hence, what the Court said is that a child born in the United States to an alien can be a “citizen,” but by definition not a “natural born” Citizen because a “natural born” Citizen is born to citizen parents, not to alien parents. The Court knew that Wong could not be a “natural born” Citizen because he did not have citizen parents. So, the Court analyzed, relying upon English common law, whether Wong was a “citizen of the United States” under the Fourteenth Amendment. By so doing, the Court did what Minor v. Happersett, 88 U.S. 162 (1875) said was not necessary for it to do, i.e., decide whether being born in the jurisdiction of the United States but to alien parents satisfied the “subject to the jurisdiction thereof” clause of the Fourteenth Amendment.

Again, the Court said “[t]he child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.” It did not say that that child born to aliens is as much a “natural-born citizen” as the natural-born child of a citizen. It said he or she was as much a “citizen.” Here, we see further proof that the Court distinguished between a “natural born” Citizen and a “citizen,” and that it found Wong to be a “citizen,” and not a “natural born” Citizen. So, the Court’s erroneous use of the old English common law applied only to how the Court defined a “Citizen” of the United States, not to how it defined an Article II “natural born” Citizen, the definition for which it cited and quoted Minor. In short, Wong Kim Ark distinguished between a “natural born” Citizen and a “Citizen” by way of definition and also in its question presented and holding.

It is also important to note that Wong Kim Ark did not revisit Minor’s American “common-law” definition of a “natural-born citizen,” which it said was a child born in the country to citizen parents. Clearly, the Court knew that Wong was not born to citizen parents. Hence, if it was going to declare Wong a “natural born” Citizen, it would have had to address Minor’s precedential definition. Such analysis would have necessarily included the Court examining the text of the “natural born” Citizen clause and commenting on the Founders’ and Framers’ intent for including the clause and all the historical evidence which in any way sheds light on the meaning of the clause. We can readily see from the Court’s decision that it did not engage in any such analysis. Since it was only concerned with determining whether Wong was a “citizen of the United States” under the Fourteenth Amendment, which is a different class of citizen than an Article II “natural born” Citizen, it was not necessary for the Court to re-examine Minor’s definition of a “natural-born citizen” or to analyze what the original meaning of the clause was. Hence, we do not find in Wong Kim Ark any such discussion on the “natural born” Citizen clause.

Further evidence that Wong Kim Ark did not declare Wong an Article II “natural born” Citizen may be found in the case of Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind.Ct.App. 2009), transfer denied, 929 N.E.2d 789 (2010) (which I will discuss below). The Indiana court acknowledged that Wong Kim Ark did not declare Wong an Article II “natural born” Citizen. But then it attempts to explain that such shortfall is “irrelevant.” Needless to say, its explanation makes very little sense in the context of trying to determine what an Article II “natural born” Citizen is. Here is what the court said in Footnote 14:

“We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a “natural born Citizen” using the Constitution’s Article II language is immaterial. For all but forty-four people in our nation’s history (the forty-four Presidents), the dichotomy between who is a natural born citizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant. The issue addressed in Wong Kim Ark was whether Mr. Wong Kim Ark was a citizen of the United States on the basis that he was born in the United States. Wong Kim Ark, 169 U.S. at 705, 18 S. Ct. at 478.”

In its attempt to explain away why Wong Kim Ark did not specifically hold that Wong was a “natural born” Citizen, Ankeny just said that there is no practical difference between a “natural born” Citizen and a naturalized citizen other than that only the former is eligible to be President. But what does that have to do with what Wong Kim Ark held? This explanation is simply not material to the question of what Wong Kim Ark actually held which Ankeny itself concedes--it “did not actually pronounce the plaintiff a ‘natural born Citizen.’” But to Ankeny, Wong Kim Ark’s choice of language is not important notwithstanding that the Founders and Framers when writing the Constitution chose their words carefully and with specific purpose of meaning and Article I and Article II, Section 1, Clause 5 treat a “natural born” Citizen and a “Citizen” of the United States as very distinct and separate classes of citizens when it comes to congressional and presidential office. So Ankeny wants it both ways. It tells us that Wong Kim Ark did not say that Wong was an Article II “natural born” Citizen but then it tells us that based on Wong Kim Ark any person who is born in the United States and “subject to the jurisdiction thereof” is a “natural born” Citizen. It thus becomes quite clear that Ankeny’s attempt to convert Wong Kim Ark’s holding into one involving a “natural born” Citizen when it really only involved a Fourteenth Amendment “citizen of the United States” must fail.

Desperate as Obama’s enablers are, they then further enlist the assistance of Ankeny in their attempt to show us that Wong Kim Ark declared Wong a “natural born Citizen.” I have already shown that Ankeny itself conceded that Wong Kim Ark “did not actually pronounce the plaintiff an Article II ‘natural born Citizen.’” Apart from what Ankeny said about Wong Kim Ark’s holding, a simple reading of Ankeny shows that, while the court may have been correct in finding that the Governor of Indiana had no legal duty to investigate whether Obama was a “natural born” Citizen, it erred when it went beyond those simple independent state grounds which were sufficient to dispose of the case and reached a constitutional issue when it declared what the definition of an Article II “natural born” Citizen is. It said that Minor left open the question of what a “natural born” Citizen was when in fact it left open the question of whether a child born in the United States to alien parents was a “Citizen” of the United States. Ankeny also said that Wong Kim Ark answered the question left open by Minor and declared Wong to be a “natural born” Citizen. While Wong Kim Ark did answer the question left open by Minor, i.e., whether Wong, who was born in the United States to domiciled alien parents, was a “Citizen” of the United States under the Fourteenth Amendment, it did not declare Wong to be an Article II “natural born” Citizen. I have shown above how the question presented in Wong Kim Ark was whether Wong was a “citizen of the United States,” not whether he was a “natural born” Citizen, and that its holding was limited to Wong being a “citizen of the United States,” not a “natural born” Citizen. Additionally, Ankeny is only a state law case and surely does not overrule Minor which confirmed the American “common-law” definition of a “natural-born” Citizen” to be a child born in the country to citizen parents.

Again with further assistance from the state-law case of Ankeny, Obama’s enablers then look to the Fourteenth Amendment for help. They add that Ankeny also relied upon the Fourteenth Amendment to show that any person born in the United States and “subject to the jurisdiction thereof,” regardless of the citizenship of his or her parents, is a “natural born” Citizen. But they do not explain how they go from the amendment’s text referring to a “citizen of the United States” to it saying according to them a “natural born” Citizen. They do not tell us that nowhere in the amendment will we find the words “natural born” Citizen and that nothing in its history or in its debates suggests that its framers included in the amendment “natural born” Citizen status or that they intended by the amendment to create or amend the meaning of an Article II “natural born” Citizen. On the contrary, the amendment was passed during Reconstruction to bestow initial membership in the United States upon freed slaves. This initial membership since the Founding, even confirmed in the grandfather clause of Article II, Section 1, Clause 5, has always been simply called “Citizen” of the United States. Hence, if the amendment were to be used by any other person to gain citizenship in the United States, he or she could only gain that same initial membership which we call “Citizen” of the United States. As proof of this purpose, the amendment only includes the words, “citizens” of the United States. Remember that Article II, Section 1, Clause 5 also speaks of “natural born” Citizens and “Citizens” of the United States. Because the republic was new, the Framers grandfathered the initial members to be eligible to be President. This class included the Founders and Framers themselves who were born British “natural born subjects” and who were naturalized to be “Citizens” of the United States by the power of the Declaration of Independence and by adhering to the American Revolution. But for births after the adoption of the Constitution, it allowed only a “natural born” Citizen to be eligible to be President. This latter class was comprised not of initial members of the United States (only “Citizens” and nothing more), but rather the children of such initial members (children of “Citizens”) or the children of later-generation members (children of “natural born” Citizens). Hence, simply being a born “Citizen” of the United States is not sufficient to be eligible to be President, for in such case, the person’s birth circumstance is missing citizen parents. Any common sense reading of the Fourteenth Amendment would show that its citizenship status is not sufficient for one to be eligible to be President. First, one must be a “natural born” Citizen and not only a “Citizen” of the United States which is the status provided by the amendment. Second, it is not sufficient to simply say that one is born a “Citizen” of the United States under the amendment and therefore a “natural born” Citizen. The Founders and Framers said “natural born,” not just “born.” In order to gain this special status of “natural born” Citizen, one must satisfy the American common law definition of a “natural born” Citizen handed down to us since the Founding and confirmed in both Minor and Wong Kim Ark. One cannot simply obtain the status of a “Citizen” of the United States under the Fourteenth Amendment, Congressional Act, or treaty, even if that status is gained from the moment of birth, for these positive laws neither by affirmative language nor by definition bestow upon anyone the status of a “natural born” Citizen. Moreover, both Minor and Wong Kim Ark said that the Fourteenth Amendment defines neither a “Citizen” of the United States (it does not define what “subject to the jurisdiction thereof” means) nor a “natural born” Citizen. That would mean by referring to neither a “natural born” Citizen nor to defining one. That is why Minor relied on American “common-law” to define a “natural born” Citizen and Wong Kim Ark relied upon English “common law” to define a “Citizen” of the United States.

So has Obama’s enablers’ position improved any by relying on the Fourteenth Amendment and Ankeny which got it like them plainly wrong? Again, the answer is a resounding “no.”

But Obama’s enablers do not stop there. They also provide lower federal court and state law cases that declared persons born in the United States to alien parents “Citizens” of the United States. First, they avoid mentioning that Minor v. Happersett in 1875 said that there were “some authorities” who said that a child born in the United States to alien parents were “citizens.” Minor rightfully said “there have been doubts” regarding whether these “authorities” were correct, given that Congress since 1790 required any child born to alien parents, regardless of the place of birth, to naturalized in the United States in order to become a “Citizen” of the United States. Second, these cases only defined a “Citizen” and not a “natural born” Citizen.

But Obama’s enablers do not end there either. They then attack Emer de Vattel, saying that nobody knew that “dead Swiss guy” who wrote “some book” on some citizenship “stuff.” Needless to say, the historical record and case law is replete with information which shows how influential Vattel was during the Founding in helping our leaders justify the American Revolution, write the Constitution, and constitute the new republic. See, for example, J.S. Reeves, The Influence of the Law of Nature Upon International Law in the United States, 3 Am.J. Int’l L. 547 et. seq. passim (1909) (Vattel exerted such a profound political influence that it is often pointed out that his theories served as the backbone for American independence); Lee A. Casey, David B. Rivkin, Jr. and Darin R. Bartram, Unlawful Belligerency and Its Implications Under International Law, http://www.fed-soc.org/publications/PubID.104/pub_detail.asp (concerning U.S. constitutional analysis, “Vattel is highly important. He was probably the international law expert most widely read among the Framers”). In fact, Vattel continued to be practically applied in our nation for well over 100 years after the birth of the republic. F.S. Ruddy, The Acceptance of Vattel, Grotian Society Papers (1972) (Vattel was mainstream political philosophy during the writing of the Constitution. The Law of Nations was significantly the most cited legal source in America jurisprudence between 1789 and 1820). But as we can see, the importance and practicality of Vattel lives on today.

Finally, and this is Obama’s enablers’ favorite ploy, they say for the Birthers to be right, all smart and consequential people in America would have to be part of some grand conspiracy. They paint the “Birthers” with the same brush and paint that they paint those who question the moon landing, the Kennedy assassination, the 9-11 attacks, and whether there is some plot to create a “One World Order.” But there is nothing conspiratorial about correctly defining an Article II “natural born” Citizen and applying that definition to Obama’s admitted birth circumstances. He has admitted and it is corroborated by documentation that he was born to a non-U.S. citizen father. Hence, he cannot be a “natural born” Citizen. There is no conspiracy in that, my friend.

And so it goes on, for this is how Obama’s enablers must make a living.

Mario Apuzzo, Esq.
October 10, 2011
http://puzo1.blogspot.com/
####

Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved

84 comments:

HistorianDude said...

Mario writes: "In Minor, the U.S. Supreme Court had to decide whether Virginia Minor, a woman, was a “citizen” in order to determine whether as a “citizen” she enjoyed a constitutional right to vote under the privileges and immunities clause of Article IV."

However, the decision itself disagrees in its very first sentence, wherein in states the question before the court:

"The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone."

Note... Virginia Minor's citizenship is accepted as a given, right from the first sentence of the decision. Not only is her citizenship not a question before the court, it is not even debated in the decision. It was an unchallenged fact at all points in the decision.

So for Mario to argue that it was ratio decidendi rather than orbiter dicta is to arouse suspicions that he has actually made no effort to understand the case beyond its utility as a quarry for out of context quota mining.

Puzo1 said...

HistorianDude,

I of II

To properly understand a court’s decision, we cannot exalt the form of a question as stated by the court over the actual substance of the court’s opinion. The complete question presented by Minor had two parts to it. The first part was whether Virginia Minor was a “citizen.” The next part was whether as a “citizen” she had the right to vote. The answers to these two questions became two separate holdings of the Court.

The Court stated the question you quote with the assumption that she was a “citizen” because the ultimate resolution of the case turned on whether as a “citizen” she had a constitutional right to vote. So the Court stated her citizenship status as a given and emphasized that the ultimate outcome depended upon whether as a “citizen” she had a right to vote. But that the Court assumed that Virginia Minor was a “citizen” in its question does not mean that the Court did not have to first decide if she was in fact a “citizen.”

Hence, we need to look to see what the Court actually said in its opinion. The Court devoted a great part of its decision on explaining the development of citizenship in the republic, from the Founding to the present and whether Virginia Minor was a “citizen.” If Virginia Minor’s citizenship was not an issue in the case, the Court would not have given so much of its attention to the matter. The Court started its discussion with analyzing whether Virginia Minor was a “citizen.” The Court explained at length the history of U.S. citizenship. It explained who the “original citizens” were. It then told us that other “citizens” could be added to the nation. It said that additions could be had by birth or naturalization. Since Virginia Minor was neither an “original citizen” nor a naturalized citizen, she could only be a born “citizen.” The Court then explained that the only form of birthright citizenship that existed which did not create any doubt was “natural born” Citizenship, which it defined as a child born in the country to citizen parents. There was no doubt that these persons were “citizens.” The Court did not recognize any other form of birthright citizenship. In other words, as Founder historian, David Ramsay, had said in his "A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen" (1789), birthright citizenship was reserved only for the children of citizens who earned the right to be a "citizen" and who were therefore entitled to pass their national character on to their children.

Continued . . .

Puzo1 said...

II of II

Minor did add that “some authorities” maintained that birth in the United States to alien parents also permitted one to be a “citizen.” It said that “there have been doubts” whether a person born in the United States to alien parents was a “citizen.” Minor had just provided its definition of a “natural born” Citizen, a definition which matched the definition of a “natural born” Citizen under natural law, the law of nations, and Vattel’s Section 212, and not the English common law. Under this definition, only the child of “citizens” could be a “natural born” Citizen. So, a child born in the United States to alien parents, if it were determined that such a child was born “subject to the jurisdiction” of the United States, could at best be a “citizen” under the Fourteenth Amendment, but not a “natural born” citizen under Article II.

While Minor again confirmed the definition of an Article II “natural born” Citizen, it did not resolve the question of whether a child born in the United States to alien parents is born “subject to the jurisdiction thereof” and therefore a “citizen” of the United States under the Fourteenth Amendment. Wong Kim Ark in 1898 said that, while such a child is not an Article II “natural born” Citizen, he is nevertheless a “citizen” of the United States under the Fourteenth Amendment.

From all this we can reasonably conclude that Minor’s reasoning and decision on citizenship was one of its holdings, for it was essential to its ultimately deciding whether Virginia Minor, a woman, had the right to vote under Article IV’s privileges and immunities clause which received equal protection under the Fourteenth Amendment. Minor's reasoning and decision on citizenship was ratio decidendi and not obiter dicta and therefore a holding.

PolitiJim said...

So glad you are on the case Mario! Great analysis.

bdwilcox said...

"Note... Virginia Minor's citizenship is accepted as a given, right from the first sentence of the decision."

- That's got to be one of the ballsiest pieces of sophistry I've ever seen. By postulating a question, you're automatically accepting the conditions in the question as true? Wow! OK, let's try this one:

Chairman in a museum says: "An inquiry has been brought before this board: A dinosaur fossil has been found that the discoverer claims is proto-avian. But before we attempt to determine its proto-avian nature, we must first determine if it is in fact a dinosaur at all."

Discoverer: "No way, uh-uh, you already said it was a dinosaur when you stated the question. Sorry, it's now a done deal. The die is struck, you've crossed the Rubicon, no go-backs, etc, etc."

Chairman: "You're an idiot."

paraleaglenm said...

Please observe that citizenship was determinative of inheritance or succession.

In Minor, this ruling was in a time of Dowry and Curtesy . . . prior to the advances of the Homestead Act, let alone suffrage.

What Minor did establish WITHOUT DOUBT was that Minor was a citizen, in fact a natural born citizen being native-born of two U.S. citizens.

Conversely, all other types of claims to citizenship were WITH DOUBT and to be determined at another time and under other circumstances.

Note: That under the Uniform Naturalization Act from 1790 through 1855 a minor child of an alien was only a citizen upon naturalization of the alien father.

Wong Kim Ark created a citizen born otherwise, merely by being born of aliens if on U.S. soil, misinterpreted by Ark as anyone within U.S. dominion, in re a Monarch's pervue of supreme and divine power.

If a citizen was one born, or naturalized, . . . which was Ark?

Was Ark, without doubt, a natural born citizen?

Or, was Ark a citizen by force of law, i.e., judiciary declaration and therefore naturalized.

Surely, Ark was not, WITHOUT DOUBT, a natural born citizen . . . but one naturalized, as was Obama.

Puzo1 said...

paraleaglenm,

Indeed, I have explained on this blog that Obama, by way of how Justice Gray in U.S. v. Wong Kim Ark (1898) followed the same jus soli naturalization path made by Lord Coke in Calvin's Case (1608) and how he used that path to interpret and apply the Fourteenth Amendment, may be (if he was born in Hawaii) a "naturalized born" "Citizen of the United States" under the English common law standard which considered such “subjects” to be “natural born subjects,” but not a "natural born" "Citizen of the United States" under our time-honored American common law standard which excluded any person from inheriting such status if born with any foreign allegiance.

jayjay said...

Mario:

Why don't these sockdollagers merely give it up and say the guy's not eliible???

It would save enough electrons so we perhaps could shut down Boulder Dam (or Hoover Dam - whichever you prefer).

Texoma said...

The Obama enablers argue that the 14th Amendment redefined the term “natural born citizen”. However, the Minor and Wong court disagree.

The Minor court stated that the Constitution did not say who shall be natural born citizens, and this statement was reiterated by the Wong court when they quoted the Minor court. The 14th Amendment, ratified in 1868, had been a part of the US Constitution for 7 years when the Minor court made their statement. If the 14th Amendment had said who shall be natural born citizens, then the Minor court (and the Wong court) could not have said what they said, which was that the Constitution (which now included the 14th Amendment) did not say who shall be natural born citizens.

paraleaglenm said...

Yes.

In my series of blogs on Obama's nationality (paraleaglenm on Wordpress) I analyzed U.S. naturalization law from the 1790 Act through 1855, and the modern laws in 8 U.S.C. 1401/1952 INA.

The distinction I am trying to distill from Coke to Ark in the most simple terms may be summed up by saying that a 'Citizen at Birth' is not necessarily a 'Natural Born Citizen.'

Obama was, by dealienage of British jurisdiction through the father, a U.S. citizen at birth.

In that regard, a great law school exam question would be, 'Was Wong Kim Ark 'born' or 'naturalized' within Justice Gray's departure from legislated act?'

While almost everyone disagrees with me, I base my definition of Natural Born Citizen on a thorough study of the law and its application at birth.

Natural Born: Born without alienage.

Naturalized: Born on U.S. soil or an Immigrant requiring de-alienage.

Quite simple, but infuriating to the English law supplicants.

Puzo1 said...

paraleaglenm,

You said: "In that regard, a great law school exam question would be, 'Was Wong Kim Ark 'born' or 'naturalized' within Justice Gray's departure from legislated act?"

I have written on this quite at length. The judicial branch of government, the same as happened in Calvin's Case, naturalized Wong to be a "born" citizen of the United States.

This is the reason why I have called Obama a Fourteenth Amendment "naturalized born" citizen of the United States (if he was born in Hawaii), but not an Article II "natural born" Citizen of the United States.

paraleaglenm said...

The Obamatons and the Courts (other than Minor) rely on a single element of English common law to define a baby born on U.S. soil a natural born citizen.

This misconception of English law flies in the face of reason when English law itself, as relied upon by the early U.S. jurists (including the ancient Calvin's case) would have determined under the 1722 Act that Obama was a natural born British subject.

I have determined that the error of relying SOLELY on jus soli was due to the historic limited jurisdiction of the American colonies to jus soli because of the very fact they were colonies and isolated states for over a century of British rule.

This is the ERROR of the law, flying in the face of Minor's judicial notice of what defined a natural born citizen, WITHOUT DOUBT.

The question of law is answered. The challenge is, however, how to convince congress and the people of this ERROR. This ERROR has created the IDIOM of Natural Born Citizen, when in the first century of our Republic that essential element of Article II was a Term of Art (get it Mr. Craig?)

1) Ark's error of 'born or naturalized' irregardless of the 'under the jurisdiction' clause ignored the fact that the dual nationality Justice Gray created still required Naturalization law to 'dealienage' the new constitutional 'citizen at birth,' i.e., therefore, that child was under the 'naturalized' part of that clause.

2) The definition of 'jurisdiction' in the 14th Amendment must be 'defined' in 8 USC 1401, per legislative history.

3) Congress has Plenary Power over Naturalization Law, which includes the legal determination of 'citizen at birth.' The statutory 'citizen at birth' includes both a child of alien parent(s) deemed a U.S. citizen . . . at the time of birth . . . A Natural Born Citizen is also a citizen at birth, but not as under force of positive law.

4) A child of alien parent(s) has dual nationality, requiring naturalization law and is therefore under the 'naturalized' portion of the 'born or naturalized' part of the 14th Amendment. Yet, there is case law where a judge defines 'naturalized' as one who applies for citizenship and takes the Oath of Allegiance . . . he ignored the Aliens and Nationality laws removing/renouncing alien nationality for a newborn.

5) Under our naturalization laws (Aliens and Nationality Act) Obama still had the right of election of British citizenship by descent until he reached the age of majority. After that, specific residency requirements confirmed his U.S. citizenship, however British law allowed special permission to apply for British citizenship. This is hardly the intent of the framers in creating the Natural Born Citizen requirement.

Conclusion: The citizens MUST get STANDING to force the courts to accept our legal analysis. Why? Because the law schools have brainwashed lawyers, i.e., congressmen, that judges are Authoritative, not reliant on legislated Act.

As far as standing goes, may I quote Justice Brandeis:

"The only title in our democracy superior to that of President is the title of citizen." Louis Brandeis (1937)

Environmentalists are given standing to protect animals and flora . . . Citizens should be given standing to protect the Constitution.

cfkerchner said...

All read this presentation given to the Judiciary Committee in 1997:

http://judiciary.house.gov/legacy/6042.htm

CDR Charles Kerchner (Ret)
ProtectOurLiberty.org

Rockdog said...

Puzo1 said:

Wong Kim Ark in 1898 said that, while such a child is not an Article II “natural born” Citizen, he is nevertheless a “citizen” of the United States under the Fourteenth Amendment.

It keeps coming back to this, and it bears out anecdotally as well, if one looks around rather than pontificating around their desires. Assuming BHO#1 is BHO#2's biodad, there's no way he could be natural born. A citizen, perhaps, if he was born here, but never "natural born." No way. No how. Seems like the enablers are taking the "depends on what the definition of 'is' is" tack.

Puzo1 said...

Does the probable answer to the following question tell us what an Article II “natural born” Citizen is?

Maintaining that Obama is an Article II “natural born” Citizen today is the equivalent to saying that the Founders and Framers considered a child born on September 18, 1787, one day after the Constitution was adopted, to a British “natural born subject” father and a U.S. citizen mother a post-Article-II-grandfather-clause “natural born” Citizen. But would the Founders and Framers, who wanted to make sure that attachment to monarchial rule and foreign allegiance inherited from birth would never enter into the office of the President and Commander in Chief, have allowed a child born after the adoption of the Constitution to a British “natural born subject” father the right and privilege of some day being President and Commander in Chief of the Military of the Republic?

Puzo1 said...

See, Frank Fahrenkope, Co-Chair, Commission on Presidential Debates Makes False Statement about Article II Section 1 Presidential U.S. Constitutional Eligibility Requirements | @ FoxNews.com | CDR Kerchner's Blog, accessed at
http://cdrkerchner.wordpress.com/2011/10/16/frank-fahrenkope-co-chair-commission-on-presidential-debates-makes-false-statement-about-article-ii-section-1-presidential-constitutional-eligibility-requirements-foxnews-com/

For presidential eligibility, the Constitution at Article II, Section 1, Clause 5 does not say “native-born” citizen. Rather, it says “natural born” Citizen. The Founders and Framers chose their words with purpose and for meaning. We have to honor their word choices.

Initially, “native” and “natural born citizen” meant the same thing. Over the years, we have given “native-born” citizen status to a person born in the United States and who thereby becomes a “born” citizen of the United States under the Fourteenth Amendment. But “natural born” Citizen is more than just being a “born” citizen of the United States by birth in the United States. Along with birth in the United States, it also requires birth to two U.S. citizen parents.

Also, using the “native-born” citizen standard would cause John McCain not to be eligible for the Presidency. Is that what Mr. Fahrenkope is telling us?

MichaelN said...

Mario,
Might there be a way to go after Jerry Mansfield and Jack Maskell re: Article II 'natural born Citizen'?

http://noiri.blogspot.com/2011/05/congressional-research-services.html

paraleaglenm said...

From 10/2008 I have struggled to define Natural Born Citizen as concisely and convincingly as possible, in as few words as possible.

I now have it down to 800 words at http://paraleaglenm.wordpress.com/2011/10/18/the-transition-from-jus-soli-obama-not-a-natural-born-citizen/

It is my hope that you all find it convincing enough to send to your congressman.

Your comments are welcome.

cpanon said...

Hi Mario
I am loathe to raise a sloven empirical point to these precise and axiomatic truths edified here, but is not the recent Polland "duplicate forgery", created a priori proof of the primary forgery and Obama? I believe you stated it is only prima facia until there is countervailing evidence then the court MUST act to adduce the Truth, else it is textbook corruption or disingenous practice of Law

Puzo1 said...

cpanon,

I am not sure to whose "disingenous [sic] practice of Law" you are referring. It surely is not mine.

On the prima facie issue, I said that Obama has the burden of proof to show that he is an Article II "natural born" Citizen. That includes conclusively showing that (1) he was born in the United States (Hawaii as he claims) and (2) he was born to two U.S. citizen parents.

On the place of birth issue, Obama at first published in 2008 on the internet a Certification of Live Birth (COLB.) The COLB is not to be confused with a long-form Certificate of Live Birth. I said that the COLB, at its bottom, stated that it was only prima facie evidence. I added that if other evidence which contradicts the veracity of that document existed, then Obama would be compelled to come forward with other evidence to conclusively prove that he was born in Hawaii. I argued that such contradictory evidence did exist and that therefore Obama could not just rely on the COLB to prove that he was born in Hawaii. I added that the original long-form birth certificate would be needed. In April 2011, Obama did publish that long-form birth certificate. But unfortunately, based on the opinions of various experts, including Ron Pollard, that “document” is a forgery.

MichaelN said...

paraleaglenm said...
"From 10/2008 I have struggled to define Natural Born Citizen as concisely and convincingly as possible, in as few words as possible.
..............It is my hope that you all find it convincing enough to send to your congressman.
Your comments are welcome.
---------------------------------
Comment:
It is the Congressional Research Service as a division of the Library of Congress that the members of Congress will rely on and hide behind.

http://noiri.blogspot.com/2011/05/congressional-research-services.html

The 'opinions' of Jerry Mansfield and Jack Maskell must be shown to be WRONG to get any headway with Congress.

Puzo1 said...

MichaelN,

Jack Maskell's definition that a "natural born" Citizen means a "born" Citizen is no only a circular definition, but also absurd given the plain text of the clause.

How could reasonable minds accept his definition of a "natural born" Citizen which contains as its only part the exact word being defined? Does it make much sense to say that a "natural born" Citizen is a "born" Citizen? What kind of a definition is that? Is this the level of intelligence that we would expect from the Founders and Framers when they gave us the eligibility standards for someone to meet in order to be eligible to be President? I strongly doubt it.

If I am looking to buy an “old electric” typewriter, do not try to sell me any electric typewriter, for I said it must be “old.” Likewise, did the Framers say "born" Citizen or did they say "natural born" Citizen? Of course, we know that they said "natural born" Citizen. Hence, that is the clause that we have to define, not "born" Citizen. "Natural born" Citizen is an idiom, a word of art. It must be defined as one complete clause and not just in its parts. That means that we have to define "natural born" Citizen, not "born" Citizen.

When we examine the historical record and U.S. Supreme Court case law for the meaning of a “natural born” Citizen (not “born” Citizen), we learn that a "natural born" Citizen is a child born in the United States to citizen parents. The clause means no more and no less than that.

Regarding Jerry Mansfield, other than his making and presenting some photocopies of some articles, I am not aware that he said anything of his own that is meaningful on the question of what is a “natural born” Citizen.

cfkerchner said...

MichaelIN:

Reports and analyis on the disinformation and misinformation in that CRS Memo, the existence of which was first released in this blog as part of the Kerchner v Obama & Congress lawsuit investigations and reporting, has been done in depth in a series of articles by Mr. Joseph DeMaio posted at ThePostEmail.com . Search that site for his name. Here is a link to one of his essays on that subject.

http://www.thepostemail.com/2011/07/04/of-tricks-schemes-and-devices/

CDR Charles Kerchner (Ret)
ProtectOurLiberty.org

MichaelN said...

But what can be done to correct the "mis-interpretation" on the part of Jack Maskell and have Congress correctly & officially informed?

cpanon said...

Mario,
OF COURSE NOT YOU!
Your trenchant research and logical commentary within the discipline of Law proves the total corruption and co-option of Law by others. You and Orly are my examples of EVERYTHING, that Law holds as inviolate and that resonates with respect of the people. What leverage and elitism all the hundreds of thousands of lawyers delude themselves they uniquely manifest is proven an deliberate collegial fraud juxtaposed to the, again, trenchant disciplined evidence you adduce.

The "clean-room" of Law is the final resolution of any process submitted oxymoron for the greater Truth and society's peace and tranquility. Not the deliberate obfuscation and disingenuous application as has been inflicted upon you, Orly and US. If the Law cannot/will not/ resolve the most stark juxtapositions then ALL the Law and ALL the opposing practitioners are an inveterate fraud. If presented as collateral supporting evidence Obama has his 4/17/11 federal press event, notice he was never allowed to touch or see the putative document and spoke in passive voice, that is claimed to be sourced from a process that is unique in the world as a scan of a single homogeneous LBC, is perfectly duplicated without access to the same, the known forgery(which then is really not a forgery), proves the claimed unique document is not unique and is indeed a forgery on the federal servers. Furthermore if the internal structure of the experimental simulation is deterministically precise and near identical to the putative flat homogeneous facsimile of the single original document it further proves a forgery is on the federal servers, and squatting at 1600 Pennsylvania Ave.

paraleaglenm said...

michelIN, Obama supporters claim that the framers relied on English Common Law, specifically jus soli creating a natural born subject, and thus conflating that with a citizen born and natural born citizen.

However, English law as cited in the 800-word blog posted supra, specifically in the Preamble to the 1772 British Nationality Act, would have determined Obama to be a natural born BRITISH subject.

Only a student of U.S. naturalization law, now called the Aliens and Nationality Act, or the 1952 Immigration and Nationality Act, would know that the actions of Obama, Sr. caused him to forfeit his natural rights over his son, which allowed U.S. law to base Obama's U.S. 'citizenship at birth' on his Mother's maiden U.S. citizenship and U.S. residency.

Note that regardless of the Wong Kim Ark misinterpretation of the 14th Amendment, the element of Obama's claimed Hawaiian birth was only part of the application of U.S. law.

If Obama, Sr. had been a responsible father and raised him in Kenya, Obama's legal right to U.S. citizenship at birth would have expired.

As for the CRS having authority, or being followed by congress. Once you read my blog, you can decide if it is concise and convincing enough to change the mind of a congressman.

Enough congressmen changing their minds is authoritative if they exercise their plenary power over naturalization law.

In the Nevada Debates last night, CNN moderator Anderson Cooper asked if they would repeal the 14th Amendment. Unfortunately, all of the candidates are unschooled of the legislative history of the 14th Amendment, and the obsuring of the meaning of 'under the jurisdiction thereof' by Wong Kim Ark.

Puzo1 said...

MichaelN,

This sentence should read (fix the "no" to "not"):

Jack Maskell's definition that a "natural born" Citizen means a "born" Citizen is not only a circular definition, but also absurd given the plain text of the clause.

paraleaglenm said...

“That all Persons born, or who hereafter shall be born, out of the Ligeance of the Crown of England, or of Great Britain, whose Fathers were or shall be, by virtue of a Statute made in the Fourth Year of King George the Second, to explain a Clause in an Act made in the Seventh Year of the Reign of Her Majesty Queen Anne, for naturalizing Foreign Protestants, which relates to the natural-born Subjects of the Crown of England, or of Great Britain, intitled to all the Rights and Privileges of natural-born Subjects of the Crown of England or of Great Britain, shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions, and Purposes whatsoever, as if he and they had been and were born in this Kingdom . . .” British Nationality Act, 1772, 1772 (13 Geo. 3) C A P. XXI

Gee . . . if born on U.S. soil after 1787, Obama, Jr. would be considered a natural born British subject.

Cf. the 1790 Uniform Naturalization Act, 1795 Act, Sec. 3, et seq through 1855. Minor children of alien fathers became citizens UPON NATURALIZATION OF THE FATHER.

Therefore, the framers would agree with Justice Waite in Minor, that only a child born of two U.S. citizens was a natural born citizen.

Puzo1 said...

paraleaglenm,

The Founders and Framers, given the then-prevailing English common law and nationality acts, and given the textual content of early U.S. naturalization acts, could not have considered someone like Obama to be an Article II “natural born” Citizen.

(1) Assuming that his father was born an English “natural born subject” and remained one during the American Revolution, Obama Jr. would have also been an English “natural born subject” under the English common law if he had been born in the American colonies before July 4, 1776 and an English “natural born subject” under English naturalization acts if born in the United States thereafter.

(2) Regarding the Naturalization Act of 1790, it gives us two important clues to the meaning of an Article II “natural born” Citizen. This Act was passed by the First Congress in 1790. Many Founders and Framers were seated in this First Congress.

(a) First, the Act states that the children of “citizens of the United States” who may be born out of the United States were considered as “natural born citizens.” Hence, Congress confirmed that the children of “citizens” of the United States were “natural born” Citizens, even if those children were born out of the United States. This part of the Act was consistent with the other part of the Act which provided that the children of persons who naturalized in the United States became themselves “citizens” of the United States when their parents naturalized if done before they became adults and only upon their own application if done thereafter. Congress did not distinguish between children born in or out of the United States. With birth in the United States not being a relevant factor, the only factor Congress focused on in granting citizenship to children born to alien parents was whether or not their parents became naturalized U.S. “citizens” before the children’s age of majority.

(b) Second, this Act shows that the Founders and Framers distinguished in an important way between a “natural born citizen” and a “citizen of the United States.” Congress referred to the parents of the children that it declared to be “natural born citizens” as being “citizens of the United States” but referred to their children as “natural born citizens.” We can see that Congress considered the first generation of Americans to fall in the class called “citizens” of the United States, but the children of that generation to fall in the class that it called “natural born” Citizens. Hence, again, it was only the children of “citizens” of the United States who were considered by Congress to be “natural born” Citizens. The Founders and Framers in drafting Article II “natural born” Citizen clause followed the same thinking, i.e., a “natural born” Citizen was a child born in the United States to “citizen” parents. And through the 1790 Act, Congress extended that special status also to children born out of the United States to U.S. “citizen” parents.

Hence, how could the Founders and Framers ever have considered someone, born an English “natural born subject” as Obama was (even assuming that he was born in Hawaii) and who Lord Coke told us in Calvin’s Case could not at the moment of birth owe allegiance to two kings (“the time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom, that was born under the ligeance of a king of another kingdom, albeit afterwards one kingdom descend to the king of the other”) be an Article II “natural born” Citizen?

3869518e-911f-11e0-86ea-000bcdcb8a73 said...

Mr. Apuzzo; You are on the Front Page of the Miami Herald today 10=20

paraleaglenm said...

Mr. Apuzzo, Previously, I suggested that Lord Coke's Calvin's Case was not dispositive or precedential as it involved the joining of two sovereignties, versus the U.S. separating from Great Britain.

One might also consider that Calvin's was decided in 1608. The Magna Carta (late 1600's) disavowed the concept of permanent allegiance, and the 1772 British Nationality Act raised 'citizenship by descent,' i.e., jus sanguinis, above jus soli.

The appropriate part of the act is quoted in http://paraleaglenm.wordpress.com/2011/10/18/the-transition-from-jus-soli-obama-not-a-natural-born-citizen/

There is a reason that U.S. jurists insisted that jus soli was the law, even if not codified and in conflict with existing U.S. legislated act (Cf. 1790 Act's reliance on parents of children born outside U.S. territory, and 1795 Act, Sec. 3).

That reason is the colonies, of limited jurisdiction, were restricted to jus soli for over a century.

For comparison, read up on Awlaki who was assassinated by drone. He was born in the U.S. to Yemeni citizens, raised in Yemen from age 7 to 18, and operated as a Yemen-born citizen in the U.S. while attending college.

One difference between Obama and Awlaki is that Awlaki did not satisfy 1952 INA 301(b)'s five-year continuous residency requirement to avoid losing Wong Kim Ark citizenship at birth when reaching the age of majority while operating under a foreign nationality.

Yet, Judge Andrew Napolitano claims Awlaki was a natural born citizen and his assassination was unconstitutional.

Even when U.S. statute rules that operating as an enemy soldier in acts of war against the U.S. revokes U.S. citizenship, Napolitano relies on liberal case law diluting that law.

This is the problem, judges like Napolitano, Lambert, Carter, Surrick, and Gray . . . which poorly trained attorneys who are now congressmen worship, these judges in their robes and up high on their dias, violating congressional plenary power over naturalization law.

Puzo1 said...

I of II

Here is a sampling of some comments made at
http://obamareleaseyourrecords.blogspot.com/2011/10/senator-marco-rubio-responds-to.html. by Obama’s enablers who in essence are enemies of our Constitution and nation:

(1) Anonymous said...[Reply]
"YOU ARE the enemy as far as I'm concerned."

GOOOOD!

I have a loaded .50 caliber rifle READY and WAITING till you punk birthers attempt to make good on your promise to do something about your enemies.

It's *NOT* going to end well for you, punk.
October 19, 2011 10:03 PM


(2) Anonymous said...[Reply]
"It's YOUR FU%&ING FAULT we have a COMMUNIST RAT BASTARD usurping our once great Republic...!
"

You are DAMN right it is partly my fault he was elected. I will do everything I can to see him re-elected; Which means I'll be voting MULTIPLE times. You heard that right, turn me into the feds -- I will be DISENFRANCHISING YOUR VOTE by CHEATING at the ballot box. You think I am your enemy now -- Wait till you see "rat bastards" like me finish off your dearly beloved republic. Mark my words: AMERICA WILL BURN! We are going to send America to the cleaners. Your country will be utterly DESTROYED when people like me get through with her. You are DAMN RIGHT - *I AM YOUR MORTAL ENEMY* . Now, Do something about it you piece of shit.
October 19, 2011 10:11 PM

(3) Anonymous said...[Reply]
The enemies of birthers number in the MILLIONS. You'll have to kill every last one of us to keep your disgusting country from being utterly ANNIHILATED. Since you lack the courage of your convictions and , quite frankly, are too fat and lazy to get your hands dirty in actual physical combat, You can kiss your piece of shit country GOODBYE. America will soon no longer exist.
October 19, 2011 10:13 PM

(4) Anonymous said...[Reply]
"lmao You wish! You couldn't handle a 50 cal. You probably couldn't even afford the rounds for it."

What the hell are you talking about? George Soros pays people like me VERY well. The majority of rich people in America, like Soros, are funding a war machine which could wipe out any army on earth. Remember that citizens militia that Obama suggested need be created - that could rival U.S.A's own military? Well guess what - IT'S HERE.

I didn't even need Soros money to afford my ammo -- I gladly accepted it though. I have enough money from my family business to pay for all my tools. There are proper tools for every job - Including the job of eliminating America from the map.
October 19, 2011 10:17 PM

(5) Anonymous said...[Reply]
America will be destroyed.

Liberals will be it's murderer.

If you don't like it - too bad so sad.
October 19, 2011 10:18 PM

(6) Anonymous said...[Reply]
"Including the job of eliminating America from the map."

I am admittedly guilty of sedition and treason.

Let's see you find one prosecutor in America who isn't afraid to charge me. Once you realize no one in law enforcement will listen to you, perhaps you'll realize how little hope you have that America can be saved.

America is paying for it's sins. America is receiving the death penalty. Obama is about to help us communists wipe America off the map for good.
October 19, 2011 10:25 PM

Continued . . .

Puzo1 said...

II of II

(7) Anonymous said...[Reply]
"You've been threatening birthers lives for over two years at this site but have yet to take any out."

Just waiting on you puke birthers to initiate civil war. Trust me, I'm getting impatient.

I'm not going to get a murder charge by killing anyone unless all out civil war was in effect. Once war hits, the blood will be shed en-mass. You can't get a murder charge for killing your enemy in war time -- I'm not stupid; I'm going to wait till it's legal to kill you.
October 19, 2011 10:29 PM

(8) Anonymous said...[Reply]
"You're an idiot and you show how unhinged the left really is."

You are damn right. We are unhinged and dangerous. Lets see you rightwingers try to do something about it.
October 19, 2011 10:36 PM

(9) Anonymous said...[Reply]
California birther: Oh, do you fancy yourself , wrapped in your pathetic american flag, holding a gun to people like me? Guess what - Your flag will be burning soon and you will be in the position of the guy on the table in your photo.
October 19, 2011 11:00 PM

bdwilcox said...

Huh. I didn't know Obama posted comments at ObamaReleaseYourRecords. Who knew, right?

Puzo1 said...

Obama enablers argue that Minor did not give us a definition of a “natural born” citizen. Rather, they say that it only confirmed that a child born in the country to citizen parents is a “natural born” citizen. This argument is the same as arguing that a dog is an animal, but an animal is not a dog. But the fallacious reasoning of this argument as it relates to Minor and in maintaining that Minor did not give us a definition of a “natural born” citizen is revealed by examining the Minor decision itself.

To determine whether Virginia Minor had the right to vote under the privileges and immunities clause of Article IV, Minor had to first determine whether she was a “citizen.” For the Court to determine whether she was a “citizen,” it had to first find a definition of the term. The Court explained who were included as “citizens” in the United States. It said first we had the “original citizens.” Then we had additions to those “citizens” by way of birth and naturalization. The Court then told us under what conditions a person could be an “original” citizen,” “natural-born” citizen, or “naturalized” citizen.

Since she was neither an “original citizen” nor a naturalized citizen, Virginia Minor, to be a “citizen,” could only be a “natural-born” citizen. So, in order for the Court to determine whether she was a “natural-born” citizen, the Court had to first give us a definition of what a “natural-born” citizen was.

Minor said “[t]he Constitution does not say who shall be natural-born citizens.” The key in this statement is that the Court was concerned with who “shall” be “natural-born” citizens. In other words, it looked for who was included in the class called “natural-born” citizens. The Court then looked to American “common-law” for an answer to the question of who shall be included as a “natural-born” citizen. Hence, the Court was concerned with what persons were included in this class of citizenship. The focus was what a “natural born” citizen is and in analyzing that question it gave us certain conditions which when existing make one a “natural born” citizen.

The Court then defined a “natural-born citizen” by giving us the necessary and sufficient conditions for a “natural-born citizen” to come into being. Those necessary and sufficient conditions are (1) “born in a country” and (2) “of parents who were its citizens.”

In giving us these conditions at a time that the Court was telling us who were the “natural-born” citizens, it would have been absurd for the Court not to tell us that these conditions were merely sufficient conditions and not necessary ones also in which case other persons who did not meet those conditions could also be “natural-born” citizens. So it is evident from how the Court defined a “natural born” citizen that the Court included those persons who shall be “natural born” citizens and by only including those persons, necessarily excluded everyone one else it did not include in that class.

Even using the enabler’s fallacious argument, neither Minor nor Wong Kim Ark helps them. Minor said that the conditions of being born in the United States to alien parents did not necessarily make one a “citizen.” It said: “Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents.” Here we see the Court looking to determine what persons are included in the class called “citizens” just like it looked to determine what persons are included in the class called “natural-born” citizens. If the Court said “there were doubts” if those conditions were sufficient to make a “citizen,” those same conditions surely would not be sufficient to make a “natural-born” citizen which we learn from the grandfather clause of Article II, Section 1, Clause 5 has a higher standard. Wong Kim Ark, on the other hand, said that those conditions are sufficient to make a 14th Amendment “citizen” of the United States but not sufficient to make an Article II “natural-born" Citizen.

originally posted October 20, 2011 10:01 PM

MichaelN said...

JUSTIA.COM SURGICALLY REMOVED “MINOR v HAPPERSETT” FROM 25 SUPREME COURT OPINIONS IN RUN UP TO ’08 ELECTION.

http://naturalborncitizen.wordpress.com/2011/10/20/justia-com-surgically-removed-minor-v-happersett-from-25-supreme-court-opinions-in-run-up-to-08-election/

Puzo1 said...

Obama's enablers continue their attack on the U.S. Supreme Court case of Minor v. Happersett (1875) They argue: “Minor v. Happersett does not say that ONLY a child born in the country to citizen parents is a natural born citizen.”

Well, let’s take a look at what options the Minor Court had when it came to Virginia Minor’s citizenship. She clearly was not an “original citizen.” And she clearly was not a naturalized citizen. Hence, she could only be a “natural-born citizen.”

The Court said that under “common-law,” “all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens as distinguished from aliens or foreigner.”

The Court did add that “some authorities” maintained that a person could also be a “citizen” by being born in the country to alien parents. The Court said that “there have been doubts” whether a person born under such circumstances could be a “citizen.” The Court did not say that these authorities considered these other “citizens” to be “natives or natural-born citizens” like the children born in the country to citizen parents were.

So the Court stated what conditions were both necessary and sufficient to be a “natural-born citizen.” Those conditions were (1) born in the country and (2) of parents who were its citizens. The Court did not give us any other birth circumstances which could make one a “natural-born citizen.” It did state that there was an open question whether one could be a “citizen” by simply being born in the country to alien parents. But as we know from a simple reading of Article II, Section 1, Clause 5, today a “citizen” is not eligible to be President unless that “citizen” is also a “natural born” Citizen. This all demonstrates that Minor’s rationale shows that “only” a child born in the country to citizen parents is a “natural-born citizen.” From what Minor said, there simply is no other way that one can be a “natural-born citizen.”

Finally, this type of reasoning is equivalent to saying that the Fourteenth Amendment does not say that “only” a person born in the United States and “subject to the jurisdiction thereof” can be a born “citizen of the United States” under that amendment and therefore there could be other circumstances which could give rise to being a born citizen under that amendment. Of course, such an argument would be totally meritless.

Puzo1 said...

Here is a good one for you.

Dana Milbank of the Washington Times accuses the “Birthers” of going after Obama, Rubio, and Jindal because they are racist. Read the story here: http://www.washingtonpost.com/opinions/the-birthers-eat-their-own/2011/10/21/gIQA6Xc43L_story.html. I wonder why he did not mention that John McCain (the white son of a white military family) was the first eligibility target and not by the “Birthers” but rather by the Democrats. Or better yet, I wonder why Mr. Milbank does not question why the Birthers have not gone after Herman Cain, who is doing very well in the poles. But it gets better.

In the same article, Mr. Milbank criticizes Governor Bobby Jindal. He says: “Jindal, for example, encouraged the birthers this year when he announced his support for legislation that would require candidates for federal office to show proof of their U.S. birth before being allowed on the ballot in Louisiana. It was, as many pointed out, a sad gesture for a man born Piyush Jindal.” Can you imagine, Mr. Milbank, accuses the Birthers of being racists and in the same article says that Jindal had no right to support ballot access legislation because he is “a man born Piyush Jindal.”

You just can’t make this stuff up.

Puzo1 said...

Obama's enablers maintain that there is no such thing as naturalized "at birth." Of course, they maintain that because Obama, if born in Hawaii, was just that which makes it impossible for him to be an Article II "natural born" Citizen.

With regard to children born in the United States, the early naturalization acts also show that Congress’s naturalization power also extended to anyone who may be born in the United States. That power included being able to declare someone born in the United States a “citizen of the United States” “at birth” if it so desired. In fact, Congress in the Civil Rights Act of 1866, the Fourteenth Amendment which constitutionalized that Act, and 8 U.S.C. Sec. 1401(a) and (b) applied its naturalization powers to children born in the United States, but only if those U.S.-born children were not born to U.S. citizen parents were those laws necessary for them to be granted the status of a “citizen” of the United States. In this connection, it is telling that Congress in the Naturalization Act of 1790, 1795 and the many that followed up to the time of Wong Kim Ark (1898), considered a child born to parents who were subject to a foreign power to be himself/herself an alien, regardless of where that child was born.

Puzo1 said...

The Obots are really misguided.

First, they expect us to believe that the Founders and Framers, after what they and their generation went through to win the Revolution, create the new republic, and become citizens of the United States, would give the office of the President and Commander in Chief of the Military and its duty of preserving the nation for their Posterity to the children of non-U.S. citizens.

Second, they have not offered one single piece of evidence, i.e., political philosopher, historical figure, Congressional Act, case law, etc., from the Founding or shortly thereafter which supports their theory that a natural born citizen could be a person other than a child born in the country to citizen parents.

The Obots have had plenty of opportunities to convince us of their position. They have provided nothing but personal attacks and irrelevant comments. They have not offered anything of value to this debate. I think it is time for the Obots to hang it up.

Carlyle said...

Remember that law review article a few years back that was suggesting that we had become, over the centuries, a much more inclusive and global nation? It further argued that, in this day and age, the NBC requirement was too restrictive and archaic - and that, in the spirit of multi-culturism and diversity, the requirement ought to be removed or broadened.

Given that this article was put out by progressives - isn't this particularly diagnostic as to the real meaning of the constitution?

To me it seems like there is a legitimate national debate on what we collectively wish the minimum essential requirements for President to be. The result may be a re-affirmation (or even strengthening) of the current requirement, or we all may agree to loosen it. But that would be the legitimate process, no?

Making up garbage and/or wholesale denial or flouting of a law seems like a piss poor formal process.

And hiding information so that we may not know the truth is just criminal.

Carlyle said...

And - how can even the most rabid Obot find this to be satisfactory?

MichaelN said...

JUSTIA.COM SURGICALLY REMOVED “MINOR v HAPPERSETT” FROM 25 SUPREME COURT OPINIONS IN RUN UP TO ’08 ELECTION.

Puzo1 said...

The Obots are out and about arguing that the Constitution only includes "citizens" who are either "born" or naturalized. They add that since Obama is not naturalized, he is a "born" "citizen" and therefore a "natural born" Citizen.

To understand what is meant by “born” "citizen," we need more than their superficial analysis of that clause.

The Constitution gives us “citizens” who are either “born” or naturalized. The Article II presidential eligibility clause itself refers to a “natural born” Citizen and a “Citizen” of the United States. These are two different types of citizens. The latter were allowed to be eligible for the Presidency under that article’s grandfather clause which is now obsolete.

Also, there is nothing in the Constitution that limits Congresses power to make one a naturalized citizen only after birth, regardless of whether that person is born in or out of the United States.

Article II calls for a “natural born” Citizen, not a “born” Citizen. Hence, by definition of the clause, a “born” citizen under Article II is a person born in the country to citizen parents. See Minor v. Happersett (1875).

The Fourteenth Amendment calls for a “citizen” of the United States. Hence, by definition of citizenship under that very amendment, a “born” “citizen” of the United States under the Fourteenth Amendment is a person born in the United States and “subject to the jurisdiction thereof.” This can include a child born in the United States to domiciled alien parents (one or two). See U.S. v. Wong Kim Ark (1898).

Not being born in the country to citizen parents, putative President Barack Obama (assuming he was born in Hawaii, but to a British citizen father and U.S. citizen mother), Senator Marco Rubio (born in Florida to Cuban citizen parents), and Governor Bobby Jindal (born in Louisiana to Indian parents) are only Fourteenth Amendment “born” “citizens” of the United States, not Article II “natural born” Citizens. They cannot benefit from the now obsolete grandfather clause. They are therefore not eligible to be President or Vice-President.

Puzo1 said...

Here is a real gem of Obot misinformation. Replying to my definition of an Article II “natural born” Citizen, here is what a commentator who goes by the name of SMDrPepper has to say:

“Problem with your theory is the founding fathers, under your definition, WOULD NOT BE ALLOWED TO HOLD OFFICE! They were all BRITISH citizens, moron.”

Here is my response to Mr. Pepper:

The Article II presidential eligibility clause itself refers to a “natural born” Citizen and a “Citizen” of the United States. These are two different types of citizens. Being British “natural born subjects” who then through the Declaration of Independence and by adhering to the American Revolution became “Citizens of the United States,” the latter were allowed to be eligible for the Presidency under that article’s grandfather clause which is now obsolete. It is this grandfather clause which permitted our early presidents to serve in that office. Martin Van Buren was the first president to be a “natural born” Citizen.

Mental giant Mr. Pepper and the illustrious Karl Rove must be working on the same project.

Puzo1 said...

"YES, HE WAS BORN IN THE UNITED STATES AND YES HE IS ELIGIBLE TO SERVE AND PERRY, TRUMP AND OTHERS SHOULD STOP ASSOCIATING THEMSELVES WITH THIS IDIOTIC FRINGE GROUP OF BIRTHERS" Karl Rove, Oct 24, 2011.

juniper55 said...

Mario,

In light of the "Minor" deletions at Justia,

http://www.wnd.com/index.php?fa=PAGE.view&pageId=359905

Is it possible for any of your court actions to be revisited?

Or anyone else's, for that matter?

What CAN we do to get rid of Obama?

paraleaglenm said...

Secretary of State William H. Seward, said: “But the idea of a double allegiance and citizenship united in the same person, and having reference to two separate, independent, and sovereign nations or governments, is simply an impossibility.” 1861

Seward, of course, foolishly purchased Alaska from the Soviet Union.

It was Wong Kim Ark's creation of an automatic citizenship for children of aliens, aliens who also conferred their nationality . . . COMPLETELY in OPPOSITION to EXISTING LEGISLATED ACT (1790 Uniform Naturalization Act, et seq through 1855) . . . that created dual nationality at birth, a conflict of law and violation of jurisprudence for judges.

The Cable Act of 1922 preserved a U.S. woman's citizenship when marrying an alien husband . . . also warned as creating a dual national baby.

The Framers could not conceive of a child born with two nationalities, or a person with dual allegiances. Such an arrangement is supposed to be allowed only between two closely related nations by treaty and statute . . . not automatically granted to children of aliens, illegal aliens, or even children of aliens who are sworn and natural enemies to our Republic and Constitution.

It was Justice Gray of Ark who planted this bastard seed, which has now perverted the Framer's intent, if not the perception of our current leaders.

Is there not one congressman, or presidential candidate, schooled in the falacy of birthright citizenship created by the perversion of law by Justice Gray?

Puzo1 said...

Juniper55,

I cited to Minor v. Happersett (1875) in the Kerchner case and argued that it provided the common law definition of a “natural born” Citizen which is a child born in the country to citizen parents. I did not use Justia.com for my research nor would the courts. In any event, I made the courts well aware of Minor v. Happersett. Dismissing the case on standing, the courts refused to reached the merits of Minor’s definition of a “natural born” Citizen. Hence, the courts in Kerchner v. Obama/Congress, dismissing the case on standing, never reached the merits of Minor's common law definition of a “natural born Citizen.”

Here is what happened in the case. On January 20, 2009, I filed the Kerchner complaint in the New Jersey Federal District Court. In my July 20, 2009 brief to the court opposing defendants’ motion to dismiss for, among other things, lack of standing, I cited and discussed Minor v. Happersett. Never reaching the merits of the questions of whether Obama conclusively proved that he was born in Hawaii or that he meets the constitutional definition of an Article II "natural born Citizen, the District Court dismissed the case because of standing and political question. Kerchner v. Obama, 669 F.Supp.2d 477 (D.N.J. 2009).

I appealed the case to the 3rd Circuit Court of Appeals, whose decision is reported at Kerchner v. Obama, 612 F.3d 204 (3rd. Cir. 2010). I again cited and discussed Minor v. Happersett in my opening brief that I filed on January 19, 2010, showing that it provided the American common law definition of a “natural born” Citizen. The Third Circuit, also not reaching the merits of the case, affirmed the lower court, saying the plaintiffs did not have Article III standing. The 3rd Circuit Court of Appeals neither agreed nor disagreed with my argument that American common law, based on natural law and the law of nations, provides the only definition of an Article II “natural born Citizen” and that that definition which has never been changed and which continues to the present is a child born in the country to citizen parents. The Court said: “We need not discuss Appellants’ contention that ‘the original common law definition of an Article II ‘natural born Citizen’ . . . is a child born in the country to a United States citizen mother and father.’ Appellants’ Br. at 18. That assertion goes to the merits of whether President Obama is in fact eligible to hold office, which we cannot address unless Appellants first establish Article III standing.” Kerchner v. Obama, 612 F.3d 204, 209, n.4, 2010 U.S. App. LEXIS 13608 . As we can see, the Court said that my clients did not have standing to bring their action against Obama and Congress. The Court then said that the plaintiffs’ remedy may be found in the voting booth. So you want people to believe that the Supreme Court decided the merits of the meaning of a “natural born Citizen” when the Circuit Court expressly said that it was not doing so.

I then filed a petition for a writ of certiorari with the U.S. Supreme Court, which also not reaching the merits, denied the petition without giving any reason. The U.S. Supreme Court denial of the petition is reported at Kerchner v. Obama, 131 S.Ct. 663 (2010).

In short, no court ever decided the merits of the Kerchner case in which I argued that Obama has yet to conclusively prove that he was born in Hawaii and that even if he was born in Hawaii, he is not an Article II "natural born Citizen" because when he was born he was born to a non-U.S. citizen father. In my briefs to the courts, I cited all the pertinent U.S. Supreme Court case law, including Minor v. Happersett (1875), Emer de Vattel, and many other historical sources which you will also find discussed by me in my many essays on "natural born Citizen" on this blog. The Supreme Court denied my petition for a writ of certiorari without comment as it does in most of the cases it refuses to review.

Doublee said...

I recently had this exchange on usconstitution.net, which is an Obama enabler site.

Just because a child born of two citizen parents is considered "natural born" does not mean that there are no other types of scenarios that could also fit the definition.

In other words, if a judge said that a Macintosh apple is legally a fruit, does that mean that Fuji apples are not? Or oranges, for that matter?


Here is my response. I had read your discussion of denying the antecedent, but I was not consciously thinking of that when I responded. As I look at your discussion again, I realize that I was definitely "channeling" your argument. In other words, thanks for furthering the education of this layman.

Classifying a Macintosh apple as a fruit is only a necessary condition to define what a Macintosh apple is. If I picked up a fruit at random, how would I know that I even have an apple let alone a Macintosh apple? I would need a specific definition. In fact, if you handed me an apple, I would be hard pressed to know what kind of apple it is.

Chief Justice Waite supplied the specific definition of a natural born citizen. His definition allows us to know specifically who is a natural born citizen. He, in effect, provided an exact definition of a Macintosh apple.


So far, I have gotten no rebuttal.
al.

bdwilcox said...

Doublee,

I don't know if Obama's an apple, but he's definitely some kind of fruit.

Puzo1 said...

Doublee,

This is one of Obama's enablers' favorite trick on misleading the public on what the Minor v. Happersett decision held.

Obama’s enablers, in addition to having the gall to argue that Minor was not about citizenship and that the decision had nothing to do with citizenship and all to do with voting rights, argue that Minor did not give us a set definition of a “natural born” citizen. They say that it only confirmed that a child born in the country to citizen parents is a “natural born” citizen. This argument takes what Minor said about being a “natural born” Citizen and says that it means no more than if Minor had said that a dog is an animal. They then accuse us of converting what Minor said about a “natural born” Citizen to being the logical equivalent of arguing that only a dog is an animal. Everyone knows that it is wrong to say that only a dog is an animal, for cats are animals too. Hence, they tell everyone that the “Birthers” have misread what Minor said about a “natural born” Citizen, for it did not say that only a child born in the country to citizen parents is a “natural born” Citizen. Hence, they argue that a child born in the country to one or two alien parents can also be a “natural born” Citizen, just like a cat can also be an animal. And it just so happens that their fallacious argument makes Obama (assuming he was born in Hawaii) a “natural born” Citizen.

But the fallacious reasoning of this argument as it relates to Minor and in maintaining that Minor did not give us a definition of a “natural born” citizen is revealed by examining first the nature and purpose of the “natural born” Citizen clause and the Minor decision itself.

The Founders and Framers gave us the “natural born” Citizen clause to provide an eligibility standard for persons to meet in order to be president. In doing so, they had a very specific meaning in mind for the clause. No way can the clause be compared to some other thing which is comprised of many subsets like an animal. In other words, the clause gives us a bright line definition for eligibility status. It is not some category of thing that changes at whim over time as the Obots would like us to believe. It follows that Minor, in analyzing the clause, would therefore have given us a specific, bright line definition of the clause which like all definitions contains material elements that must be satisfied for that thing to be.

Here is another way to look at how absurd the Obots' position is. Consider the 14th Amendment and how it defines a “citizen” of the United States. The Obots would not argue that when it comes to persons born in the United States being born citizens under that clause, the amendment does not say that only if you are born in the United States and subject to the jurisdiction thereof” can you be a born citizen under that amendment and that therefore there exists other ways for such a person to be a born “citizen” of the United States. They do not and would not make such a ridiculous argument but yet they do that exact thing when it comes to Minor's definition of the “natural born” Citizen clause.

Doublee said...

I am conducting some more Internet research on the question of what constitutes a binding precedent. I wanted to confirm something I recall reading some time ago and that was the statement that a precedent applies only if the questions in the former case and the pending case are similar.

Wikipedia seems to confirm that.

Wikipedia quotes Marjorie D. Rombauer, a former law professor, who described mandatory precedent as follows:

Given a determination as to the governing jurisdiction, a court is "bound" to follow a precedent of that jurisdiction only if it is directly in point. In the strongest sense, "directly in point" means that: (1) the question resolved in the precedent case is the same as the question to be resolved in the pending case, (2) resolution of that question was necessary to the disposition of the precedent case; (3) the significant facts of the precedent case are also present in the pending case, and (4) no additional facts appear in the pending case that might be treated as significant.[2]

Condition (1) is quite troubling. The question that was resolved in Minor was whether under the U.S. Constitution Mrs. Minor has a right to vote.

The question to be resolved in a presidential eligibility case is whether the person is a natural born citizen.

This leads me to conclude that the Minor definition may not be binding since the questions are not similar. I am not presenting this as a counter argument. I am presenting this as an apparent dilemma to be resolved.

Puzo1 said...

I have read plenty of Obot comments over the last 3 years. Read the following email response from grand Republican leader, Karl Rove. There is no doubt he is a Super Obot.

First, he does not even know that under Article II, Section 1, Clause 5 the issue is whether Obama is a “natural born” Citizen, not whether he is a “Citizen” of the United States which status has been obsolete for presidential eligibility for births occurring since after 1787.

Second, you have got to love his comment that Minor dealt with whether Virginia Minor had the right to vote and not about whether she was a “natural born citizen.” That statement is about as ridiculous as a probate court, whose task it is to determine whether or not to admit a will to probate, saying that it does not matter whether the person is dead but only whether his will is valid.

Third, you have also got to love his comment that birthers advocate the theory that a grand conspiracy was formed at the time of Obama’s birth to allow baby Obama to be President some day.

Mr. Rove is a leader in the Republican Party and an Obama enabler. Can you just imagine a major party being led by such intellectual talent. Please read and enjoy.

From: Karl Rove
To: Gary Wilmott
Sent: Tue, October 25, 2011 2:49:26 PM
Subject: Re: Your Birther comments

No court has every held that someone born on US soil to a US mother is anything other than a US citizen. The case you cite (Minor) dealt with the question of whether a woman was entitled to the right to vote, not whether she was a "natural born citizen." However, the court did (in a over dictum) hold "At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also."

President Obama's birth certificate has been made public and his birth was noted by both Honolulu newspapers the next day. These birth notices were triggered by the papers receiving copies of the documents filed with the state authorities. If Mr. Obama were born in Kenya, what an extraordinary conspiracy it was that his parents, halfway around the world in Africa, arranged to have fake documents filed by the hospital with Hawaii authorities and the local papers all so that forty-some odd years later, he would be eligible to run for president!

You can hold fast to your belief President Obama is not a US citizen, but he is thrilled you do.

You'll excuse that I had to laugh several times when you tossed out insults like "sorry-ass" and "coward" and other childish phrases. After all, I helped raised $72 million last year for American Crossroads to spend on electing conservatives to the Senate and House, a task for which President Obama called me "an enemy of democracy." Now, I'm helping raise $240 million to defeat Obama, elect a GOP Senate, and keep the House in Republican hands. What are you doing to carry your weight?

Don't bother writing back. I have no need to read any of your tiny little insults and jibs.

Puzo1 said...

Be sure to read all about it-- The Mystery of the Missing Eyeglasses. See Martha Trowbridge's new article at Terrible Truth entitled, "Another Cold Case File, Closed: 'Malcolm X’s Missing Eyeglasses,'”
accessed at http://terribletruth.wordpress.com/2011/10/25/another-cold-case-file-closed-malcolm-xs-missing-eyeglasses/


Ms. Trowbridge wants to know, whose glasses was Obama wearing as he slept on that couch? Were they Malcolm X's "lost" eyeglasses?

Puzo1 said...

Doublee,

You doubt whether “(1) the question resolved in the precedent case [Minor] is the same as the question to be resolved in the pending case [Obama’s eligibility].” I answer this question “yes.” Therefore, Minor’s definition of a “natural-born citizen” is binding precedent that still controls today.

I will break the Minor case down for you thus:

Virginia Minor argued:

If I am a “citizen,” then I have privileges and immunities.

If I have privileges and immunities, then I have the right to vote.

I am a “citizen.”

Therefore, I have the right to vote.

The Court told Virginia Minor:

If you are a “citizen,” then you have privileges and immunities.

You are a “natural-born citizen” and therefore a “citizen.”

Therefore, you have privileges and immunities.

But privileges and immunities do not include the right to vote.

So even though you are a “citizen,” you do not have the right to vote.

Observations about the Minor case:

A question that was decided in Minor is whether Virginia Minor was a “natural-born citizen” and therefore also a “citizen.”

If order to answer this question, the Court had to first define what a “natural-born citizen” was.

The Court did provide us with a definition of a “natural-born citizen, i.e., a child born in the country to citizen parents.

Based on that definition, the Court decided that Virginia Minor was a “natural-born citizen” which the Court said also made her a “citizen.”

Conclusion: was Virginia Minor a “natural-born citizen?” To answer that question, the Court had to define a “natural-born citizen.”

Is Obama is a “natural-born citizen?”

To answer that question, we have to apply the definition of a “natural-born citizen” that Minor already gave us.

Since Minor already answered the question of what is a “natural-born citizen,” we can therefore use the definition of a “natural-born citizen” that Minor gave us.

Based on the Minor definition of a “natural-born citizen,” Obama is not a “natural-born citizen.”

Puzo1 said...

Doublee,

Here is some more information that may be of help to you in understanding my position on Minor v. Happersett (1875).

These are the holdings in Minor v. Happersett (1875):

1. Virginia Minor was a “natural-born citizen” and therefore also a “citizen.”

2. Since Virginia Minor was a “citizen,” she was entitled to the privileges and immunities guaranteed by Article IV.

3. Article IV’s privileges and immunities protection did not include the right to vote.

4. Virginia Minor did not have any constitutional right to vote even though she was a “natural-born citizen” and a “citizen,” and as such entitled to the privileges and immunities of Article IV.

5. Missouri could deny women the right to vote through its constitution and laws which granted the right to vote only to qualifying males.

You will note in No. 1, the Court held that Virginia Minor was a “natural-born citizen” and thereby also a “citizen.” The Court was compelled to first give us a definition of what a “natural-born citizen” is before it could so rule. That definition is a child born in the country to citizen parents. The definition that it gave us was essential to its ultimate holdings stated in No. 4 and 5. Since the definition was essential to its ultimate holdings, that definition is also a holding and therefore binding precedent. Based on Minor’s binding and precedential definition of a “natural-born citizen,” i.e., a child born in the country to citizen parents, Obama is not a “natural-born citizen.”

MichaelN said...

Breaking: Liberty Legal Foundation and Presidential Candidate John Dummett File Multiple Eligibility Lawsuits Against Barack Hussein Obama

http://www.thepostemail.com/2011/10/26/breaking-liberty-legal-foundation-and-presidential-candidate-john-dummett-file-multiple-eligibility-lawsuit-against-barack-hussein-obama/

Doublee said...

Mr. Apuzzo,

You doubt whether “(1) the question resolved in the precedent case [Minor] is the same as the question to be resolved in the pending case [Obama’s eligibility].”

I arrived at framing my question based on an admittedly superficial Internet search. I wanted to make sure I understood how a binding precedent is established. What I read led to some confusion and my post was intended to "unconfuse" me.

If I may channel Bill Clinton, the question is, what is the meaning of question? This was my thinking:

There is the issue before the Court. In other words, there is a question before the Court that must be answered. The answer is the decision in the case. Let's call this the primary question.

Other questions are raised and answered in order to develop a rationale for answering the primary question. Let's call these secondary questions, which is not to say they are unimportant or non-essential.

The primary question in Minor then was whether she had a right to vote. The primary question in the case was not whether she was a natural born citizen.

The secondary question in Minor was whether Mrs. Minor was a citizen. If she were not a citizen, the Court had no jurisdiction to rule on her case. The Court established her citizenship by using “the nomenclature of which the framers of the Constitution were familiar…” Yes, the definition of natural born citizen in Minor was essential to the case, and was not an obiter dictum.

The primary question in an eligibility case is whether the person seeking the office of president is a natural born citizen.

Since the primary questions in Minor and an eligibility case are different, I became uncertain that I really could defend to others the proposition that the definition of NBC in Minor set a precedent.

Now after having read the following definition of Stare Decisis in http://legal-dictionary.thefreedictionary.com/Stare+Decisis, I came to a different conclusion. In the following definition there is no ranking of questions, so to speak, so the fact that the question of who is natural born citizen was answered decisively in Minor would apply if the same question came up in another case.

In the United States and England, the Common Law has traditionally adhered to the precedents of earlier cases as sources of law. This principle, known as stare decisis, distinguishes the common law from civil-law systems, which give great weight to codes of laws and the opinions of scholars explaining them. Under stare decisis, once a court has answered a question, the same question in other cases must elicit the same response from the same court or lower courts in that jurisdiction.

I will state my understanding of the issue this way.

If the answer to a question raised in a court case is essential to the resolution of the case, then the ranking of the question is irrelevant. The primary questions in the previous and pending cases do not have to be similar. If the answer to a question in the previous case was essential to deciding the case, and the same question is raised in the pending case, then the answer provided in the previous case must be used in the pending case.

Puzo1 said...

Doublee,

Excellent post.

You now understand that a case can have more than one holding. Each essential question that is answered by a court in a case is itself a holding. Each holding of a case becomes a premise to the ultimate holding. So in Minor, its holding concerning the meaning of a "natural born Citizen" was essential to the Court's ultimate holding concerning a woman's right to vote. What Minor said about a “natural-born citizen,” was deemed essential to the ultimate holding regarding a women’s right to vote and a necessary part of it. Stating that there was no doubt as to the definition it presented, the Court definitively disposed of the question of the meaning of a “natural born Citizen.” Hence, when the question of what is a "natural born Citizen" should come up again, a court could rely upon the holding in Minor regarding what the meaning of that clause is.

But that is not the end of the story. A holding in a case can lose its force if the context of a later decision calls for a different rationale or policy as that which existed in the former decision from where that holding comes. Hence, someone might argue that the context of Minor was women’s voting rights but the context of an Obama case is eligibility to be president. But just identifying some factual difference in the two cases is insufficient to distinguish the first case in a way as to cause the holding of that case not to control the second case. One is still duty bound to show the identified distinction makes a significant difference in how the second case should be decided.

So does it make a significant difference to an Obama eligibility case that Minor was ultimately about women’s voting rights and an Obama case is about presidential eligibility?

The answer is "no." There is only one "natural born Citizen" and that is found in Article II which is that article that provides for presidential eligibility requirements. Since the clause covers presidential eligibility, the Founders and Framers could only have meant to give the clause one distinct meaning. There cannot be different meanings to the clause which can change over time or because of some case’s context. Provided that a court intended to and did in fact define an Article II “natural born Citizen” and not some other type of citizen as may be found under the Fourteenth Amendment, Congressional Act, or treaty, the meaning of the clause should not change with the context of a case. If a change to the clause is wanted, then the change must be done by constitutional amendment. Hence, regardless of the context in which the clause may be defined, the meaning of the clause would not change. What this means is that the meaning of the clause in a voter case would be the same as one in a presidential eligibility case and that Minor’s definition of a “natural born Citizen” is binding precedent.

phil stone said...

1 of 2 Was thinking about US Const.art 2 sec 1 - the phrase "a Citizen of the United States,at the time of the adoption of this Constitution" means to me that if one were born prior to 1787 the parents were not required to be US citizens since the US did not exist until 1787. Those born after 1787 were required to be natural born citizens.

phil stone said...

2 of 2 The question is what is the difference in citizenship? Does this imply that natural born citizens have US parents and is it sufficient to define the meaning so that it stands alone. I am aware that the founders and framers knew what they were talking about and think the Constitution does define natural born citizen. old marine Phil Stone

Puzo1 said...

Phil Stone,

The United States came into being prior to 1787. Our first Constitution was the Articles of Confederation and Perpetual Union which was drafted by the Continental Congress in 1776-77, was first used in 1777 and was formally ratified by all 13 states in 1781. This constitution referred to the confederacy as the “United States of America.” (Article I said: “The Stile of this Confederacy shall be ‘The United States of America.’"). http://www.law.ou.edu/ushistory/artconf.shtml. Our second constitution was the Constitution of 1787 which in Article II, Section 1, Clause 5 refers to “natural born Citizen[s]” and “Citizen[s] of the United States.” These “Citizen[s] of the United States” were the “original citizens.” The Constitution also gave Congress the power to add to these citizens through naturalization.

Only those born after July 4, 1776could be “natural born Citizen[s].” The reason for this is that under the natural law and law of nations definition of the term, a “natural born Citizen” needs parents who are “citizens.” Understanding the power of the doctrine of natural allegiance, the Founders and Framers expected both parents to be U.S. citizens so that the “natural born Citizen” child would be born within the full and complete allegiance and jurisdiction of the United States.

The Founding generation was eligible to become “citizens of the United States” after July 4, 1776. Those who adhered to the American Revolution became “citizens of the United States.” These became the “original citizens.” These included our early presidents who were grandfathered under Article II to be eligible to be President.

Under the same Article II, those born after 1787 had to be “natural born Citizen[s]” in order to be eligible to be President. These “natural born Citizen[s]” referred to the Founding generation’s children born in the United States. President Martin Van Buren was the first of this second generation to be a “natural born Citizen” president. As we have seen, the Constitution gave Congress the power to add to these citizens through naturalization. Hence, more “natural born Citizen[s]” could be made in the future by children being born in the United States to parents who were naturalized “citizens of the United States.”

Puzo1 said...

I of II

An Obama enabler by the screen name of “Sean” has posted these replies to my various comments at http://blogs.browardpalmbeach.com/pulp/2011/10/marco_rubio_citizen_birther_obama_kenyan.php#comment-348442671 :

His comments:

(1) “As a citizen, you are either ‘natural,’ or ‘naturalized.’ That's it. End of list. ‘Natural’ means you are a citizen as a condition of your birth, while ‘naturalized’ means you are a citizen via legal immigration and acceptance.

8 USC 1401 pretty explicitly states conditions for citizenship at birth. I'm a little surprised a scholarly lawyer such as yourself doesn't cite the law at all.

(2) ‘For the purposes of this case, it is not necessary to solve these doubts,’ quoting Minor.

This alone makes your interpretation of the court's opinion weak at best. It's a logical fallacy, much like: if all strawberries are red, then everything red must be a strawberry.

(3) ‘The Natural Born Citizen Clause of Our U.S. Constitution Requires that Both of the Child’s Parents Be U.S. Citizens At the Time of Birthhttp://puzo1.blogspot.com/2009...’

No, it doesn't. ‘Natural-born citizen’ is explicitly left undefined by the constitution (presumably to give Congress the authority to make that call).”

Continued . . .

Puzo1 said...

II of II

My response:

For the Founders and Framers, for those born after July 4, 1776, “natural born Citizen of the United States” meant born in the county to citizen parents. See Samuel von Pufendorf (1691), Emer de Vattel (1758), and David Ramsay (1789). That a court or Congress subsequently added to our citizens by making other persons “born . . . citizens of the United States,” but not “natural born Citizen[s] of the United States” was neither intended to amend Article II, Section 1, Clause 5 nor did it amend that clause.

The Constitution gave Congress the power to make uniform the laws of naturalization. It did not give Congress the power to create “natural born Citizen[s],” which would in effect have given the power to Congress to change who may be eligible to become President without going through a Constitutional amendment. We saw the Third Congress in 1795 in the Naturalization Act of 1795 remove “natural born citizen” from the First Congress’s Naturalization Act of 1790 and replace it with “citizen of the United States.” Hence, 8 U.S.C. Section 1401 only defines “citizen[s] of the United States,” not “natural born Citizen[s] of the United States.” You will note from reading Article II, Section 1, Clause 5 that the status of being a “Citizen of the United States” as being the sufficient and necessary citizenship standard for presidential eligibility became obsolete for births occurring after 1787. For those born after 1787, the sufficient and necessary citizenship standard became “natural born Citizen,” which would have been and in fact was a more stringent test.

Minor’s “doubts” were about who was a Fourteenth Amendment “born . . . citizen of the United States,” not who was a “natural born Citizen of the United States.” You are confounding and conflating these two citizenship standards.

I do not know about your strawberries, but I will tell you that Vattel said a “natural-born citizen” is a child born in the country to citizen parents. The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758). This is a definition. This definition has been confirmed by, among other authorities, The Venus (1814) (C.J. Marshall concurring and dissenting for other reasons), Dred Scott v. Sandford (1857) (J. Daniels, concurring), Minor v. Happersett (1875), and U.S. v. Wong Kim Ark (1898).

We can reduce this definition of a “natural born Citizen” to the following logical statements: If one is a natural born citizen, then one was born in the country to citizen parents (both being necessary and sufficient conditions).

Stated differently: One is a natural born citizen if and only if one is born in the country to citizen parents.

So as you see, I am only stating a bi-conditional and I am not affirming the consequent as in the case of your strawberry example. The difference in our logical arguments is that yours comes from finding and applying a fallacious logical statement to my argument (like applying the wrong law to a given factual scenario) while my comes from finding and applying a valid logical statement which represents the intent of the Founders and Framers in drafting a bright line rule for presidential eligibility (like applying the correct law to a given factual scenario).

Finally, you are wrong that the Founders and Framers left “natural born Citizen” undefined. They specifically told us who is a “natural born Citizen” by telling us in the early naturalization acts of Congress what persons needed naturalization in order to become a “natural born citizen” “at birth” which was later corrected to “citizen of the United States” “at birth” and a “citizen of the United States” after birth.

juniper55 said...

Hi Mario,

Does this case have a snowball's chance in hell?

Just filed this week - Liberty Legal Fdn suing the DNC.

http://www.scribd.com/doc/70525434/LIBERTY-LEGAL-FOUNDATION-et-al-v-NDP-of-USA-INC-et-al-USDC-AZ-1-COMPLAINT-Gov-uscourts-azd-651381-1-0

Maybe you could give these folks a hand?

Hat tip to MichaelN

The Big Dollop said...

A very interesting article sir for which I offer one minor critique

Quote
"For all but forty-four people in our nation’s history (the forty-four Presidents)"

I was under the impression only 43 people have attained the office of President of the United States of America ... with Grover Cleveland being credited as 22nd and 24th President of the United States there can't possibly be 44 people as you postulate my friend.

Yours Aye
TBD

Puzo1 said...

The Big Dollop,

Please note that I did not "postulate" that we have had "forty-four" people as Presidents. As I clearly showed in my article, it was the Indiana Court of Appeals in the Ankeny v. Governor of Indiana case that made that statement in Footnote 14 of its decision. The court could have said “forty-four presidencies held by forty-three people.” Maybe the court got their information from Wikipedia whose article on Barack Obama says he is the “44th President of the United States.” See http://en.wikipedia.org/wiki/Barack_Obama .

Thank you for pointing that out. We can now add that error to the list of other errors the Ankeny court made.

Puzo1 said...

The Obots argue that the Founders and Framers got their definition of a “natural born Citizen” from the English common law because the Constitution and the English common law shared the same language, English. This theory is totally baseless.

First, am I to believe that the Founders and Framers only knew one language, English. Of course not. We know that many of the Founders and Framers, in addition to English and other languages, knew Latin and French and read books in these other languages. Actually, books written in French were highly respected and considered important works in colonial America.

Second, that common language surely did not stop the Americans from declaring their independence from and going to war with England.

Third, are we to think that the Founders and Framers were persons of limited intellectual capacity who could not think of constitutional concepts on their own and had to rely on the English common law to write the Constitution because that Constitution was written in the same language as the English common law? Again, of course not. On the contrary, we know how well prepared and read they were. They were individuals of vast knowledge. The world was their garden, not just the English common law.

Fourth, we know that the Founders and Framers did not adopt the English common law on the national level. Rather, they started fresh, writing on a tabula rasa. What they wrote on that slate was natural law and the law of nations.

MichaelN said...

Mario, it is apparent from reading through Lord Coke's report of Calvin's case, that there is no where to be found any determination of a natural born being such by jus soli only.

It is the subject status of the parent father (albeit an alien born parent with "local ligeance")which qualifies a child born in England, as a "natural born subject".
i.e. "born under the ligeance of a subject'"

So even as the obots cite English common law to enhance their argument, there is nothing in English common law that supports their case.

The obots have selectively cherry-picked from Calvin's case claiming that "child born in England to an alien parent = natural born subject" which is only part of the truth.

TheEuropean said...

Mr. Apuzzo,

there is a blogpost out there well worth to be read:


http://birtherthinktank.wordpress.com/2011/10/30/de-vattel-delusion-disorder-a-psychiatric-diagnosis/

Sincerely your

European

bdwilcox said...

The founding fathers told us in no uncertain terms that the Constitution was not based on English common law. On Thursday, June 19, 1788, George Mason, delegate from Virginia, was recorded in the notes from the Federal Constitutional Convention, stating: "The common law of England is not the common law of these states."

paraleaglenm said...

Don't forget that from the East Coast law schools to the country lawyer reading while on a horse, or by firelight, Blackstone was essential reading.

However, even Blackstone noted the 1350 British law guaranteeing jus sanguinis natural British subjects born outside British territories.

Calvin's Case was from 1608. The 1772 British Nationality Act superseded that legal discussion on jus solis. The 1772 Act featured jus sanguinis in its Preamble.

It is one thing for U.S. jurists to show off their classical education by citing Lord Coke; it is another to correctly analyze the laws in force when Article II and the Natural Born Citizen clause was written, e.g., the 1772 British Nationality Act and the 1790 Uniform Naturalization Act.

paraleaglenm said...

@bdwilcox
Of course, both the U.S. and India courts rely on English common law terms of art . . . however, except for flaccid reasoning of some judges deeming 'citizen' analagous to 'subject,' a 'natural born citizen' is not under the same legal authorities as 'natural born subject.'

U.S. common law from the 1700s and 1800s recognized English law as precedent, as long as it didn't conflict with U.S. legislated act.

2010 Code of Laws of South Carolina:SECTION 14-1-50. Common law of England shall continue in effect. [SC ST SEC 14-1-50]

How about Virginia?

The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly. Code 1919, §2, §1-10; 2005, c.839

Pa. 1897. The omission of a statute from the list of English statutes reported by the judges of the Supreme Court as in force in Pennsylvania, 3 Binn. 595, raises a strong presumption that such statute is not in force there. Gardner v. Keihl, 37 A. 829, 182 Pa. 194.

The statutes passed in England before the emigration of our ancestors, which are in amendment of the law, and applicable to our situation, constitute a part of our common law. Pa. 1782. Morris’ Lessee v. Vanderen, 1 Dall. 64, 1 L.Ed. 38. O. & T. 1783. Republica v. Mesca, 1 U.S. 73, 1 Dall. 73. 1 L.Ed. 42.

The Virginia Constitution, 1776:

"Whereas George the third, King of Great Britain... By answering our repeated petitions for redress with a repetition of injuries: And finally, by abandoning the helm of government and declaring us out of his allegiance and protection.

By which several acts of misrule, the government of this country, as formerly exercised under the crown of Great Britain, is TOTALLY DISSOLVED." (emphasis in the original)

Further:

"All laws shall originate in the House of Delegates... A Governor, [shall] exercise the executive powers of government, according to the laws of this Commonwealth; and shall not, under any presence, exercise any power or prerogative, by virtue of any law, statute or custom of England."

The Origin of Government and Laws in Connecticut
JESSE ROOT, 1798

”These rights and liberties are our own, not holden by the gift of a despot. Our government and our rulers are from amongst ourselves; chosen by the free, uninfluenced suffrages of enlightened freemen; not to oppress and devour, but to protect, feed, and bless the people, with the benign and energetic influence of their power (as ministers of God for good to them). This shows the ignorance of those who are clamorous for a new constitution, and the mistake of those who suppose that the rules of the Common Law of England are the common law of Connecticut, until altered by a statute.”

Puzo1 said...

paraleaglenm and bdwilcox,

As previously said, adoption of the English common law on the state level does not mean that that law was adopted on the national level.

Apart from the fact that our U.S. Supreme Court has never defined a "natural born Citizen" under the English common law, but rather always under natural law and the law of nations, here is some information:

(1) In The Federalist No. 42 (J. Madison), Madison said in 1787:

“The power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, belongs with equal propriety to the general government . . . . Felony is a term of loose signification, even in the common law of England; and of various import in the statute law of that kingdom. But neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. The meaning of the term, as defined in the codes of the several States, would be as impracticable as the former would be a dishonorable and illegitimate guide. It is not precisely the same in any two of the States; and varies in each with every revision of its criminal laws. For the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper.” Note that Madison said that the English common law would be a “dishonorable and illegitimate guide” for defining what a “felony” is. We can only imagine what Madison would have thought about defining a “natural born Citizen” by that same law.

(2) The law of nations “acts everywhere proprio rigore, whenever it is not altered or modified by particular national statutes, or usages not inconsistent with its great and fundamental principles. Hensfield’s Case, 11 F.Cas. 1099 (C.C.D.Pa. 1793 (No. 6,360) (argument of counsel, Peter Du Ponceau).

(3) James Monroe said in 1802 that “the application of the principles of the English common law to our constitution” should be considered “good cause for impeachment.”

(4) "Manifestly, when the sovereignty of the Crown was thrown off and an independent government established, every rule of the common law and every statute of England obtaining in the Colonies in derogation of the principles on which the new government was founded was abrogated.” U.S. v. Wong Kim Ark, 169 U.S. 649, 709 (1898) (C. J. Fuller, dissenting).

(5) And here is the nail in the coffin to the argument that the Founders and Framers followed English common law to define a “natural born Citizen,” the First Congress abrogated the English common law when it passed the Naturalization Act of 1790 which considered children born in the United States to alien parents as aliens. You will note upon a careful reading of Lynch v. Clark, (1844) 1 Sandf.Ch. 583 and U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) that both courts ran as far as they could from the early naturalization acts.

(6) Justice Souter, dissenting in Siminole Tribe of Florida v. Florida, 517 U.S. 44 (1966) said that the Founders were hostile to receiving English common law as federal law for “the political systems of the new Republic, explaining that there was no notion of a federal government under the English common law prior to the adoption of the Constitution and they were very sensitive to the division of power between the states and the federal government).

How then are we to believe that the Founders and Framers relied upon the English common law to define a “natural born Citizen.”

See also The Framers Used Emer de Vattel, Not William Blackstone to Define a “Natural Born Citizen” at http://puzo1.blogspot.com/2010/11/framers-used-emer-de-vattel-not-william.html ;

The Law of Nations or Principles of Natural Law' as U.S. Federal Common Law Not English Common Law Define What an Article II Natural Born Citizen Is, at http://puzo1.blogspot.com/2009/08/law-of-nations-and-not-english-common.html.

Puzo1 said...

TheEuropean,

Dr. Squeeky would better spend her time studying the foundation and history of our nation rather than flipping through DSM IV, practicing pseudo-psychology, and making psychiatric diagnosis of phantom patients, all done for the purpose of misleading and deceiving the American public as to the true meaning of an Article II “natural born Citizen.”

paraleaglenm said...

I spent a little time in the law library leafing through the oldest digests of U.S. case law.

English statutes and case law were valid and authoritative as precedent, but only if not supreseded by U.S. (Federal, as Mr. Apuzzo points out) legislated acts. A Pennsylvania court required that any British statute to hold force of law first be listed with the state supreme court.

It is indisputable that the 1772 British Nationality Act would consider a child such as Obama, born on U.S. soil, to be solely a British subject. Obama supporters try to claim that British law had no jurisdiction . . . yet, they anneal themselves to the jus soli concept of the 1608 Calvin's Case to insist Obama is a natural born citizen.

The fact that Obama is ineligible and his actions as president proceeding from the time of his inauguration are void and a sham is . . . well, you come up with an analogy.

I think it was Mr. Apuzzo, with Atty. Hemenway, who cited the Great Chief Justice Marshal in the Cohen's case, that ignoring this matter of constitutional law is TREASON.

If you know your local Sheriff, please contact him . . . these are powerful enforcers of law with impressive jurisdiction.

TheEuropean said...

Mr. Apuzzo,

I guess that we do not share many opinions and beliefs and you may know that after my few posts.

The more I appreciate that you published my "tongue in cheek" post with a reference to "Dr. Squeeky". No other player on this playground - on your side of the field - shows this courage.

Sincerely
Your
European

bdwilcox said...

Further tampering uncovered at Justia. This whole situation is creepily Orwellian.

Doublee said...

The definition I have read for binding precedent is that it is a court decision that is binding on all lower courts.

Stare decisis -- let the decision stand -- is not necessarily binding, although I suspect that a court would have to have a very good reason for overturning a previous history of decisions.

This leads to my question. Should an eligiblity case ever reach the Supreme Court, and assuming that the Supreme Court Justices follow all established legal practices, do they necessarily have to use the definition of natural born citizen established in Minor to determine whether a president or person is eligible?

To phrase the question differently, can you forsee a legitimate line of reasoning that the Justices could use to change the Minor defintion? Or would their reasoning have to be such that it would justify the decision they wish to reach?

MichaelN said...

Tampering with Constitutional meaning & intent.

Justice Scalia blows the whistle on SCOTUS justices tampering with Constitutional meaning, definitions and intent.

(Remove the spaces between the h t t p to use the url link)

h t t p://www.cfif.org/htdocs/freedomline/current/guest_commentary/scalia-constitutional-speech.htm

Quoting Justice Scalia:
“Now, in asserting that originalism used to be orthodoxy, I do not mean to imply that judges did not distort the Constitution now and then, of course they did.

We had willful judges then, and we will have willful judges until the end of time.

But the difference is that prior to the last 50 years or so, prior to the advent of the “Living Constitution,” judges did their distortions the good old fashioned way, the honest way — they lied about it.

They said the Constitution means such and such, when it never meant such and such.

It’s a big difference that you now no longer have to lie about it, because we are in the era of the evolving Constitution.

And the judge can simply say, “Oh yes, the Constitution didn’t used to mean that, but it does now.”

We are in the age in which not only judges, not only lawyers, but even school children have come to learn the Constitution changes.

I have grammar school students come into the Court now and then, and they recite very proudly what they have been taught: “The Constitution is a living document.” You know, it morphs.

Well, let me first tell you how we got to the “Living Constitution.”

You don’t have to be a lawyer to understand it.

The road is not that complicated.
Initially, the Court began giving terms in the text of the Constitution a meaning they didn’t have when they were adopted”

A pen said...

Mario, in Minor the court cited the repealed 1790 act attempting to set rules of naturalization. Does that require the court to revisit that part of their conclusion because they derived intent from a law that does not exist? Would it be possible to then revisit the "born beyond seas or out of the jurisdiction of the US" clause to discern what power of naturalization exists beyond seas or outside it's jurisdiction concerning natural born citizens? They did cite it so it ought to be fair to test it, no? Under the premise that an unconstitutional law never had the force of law it's arguable that a law repealed can still be tested if the court cites it, no?

Puzo1 said...

A Pen,

Early acts of Congress are good evidence of the Founders' and Framers' intent regarding what they wrote in the Constitution.

We know that in 1795, the Third Congress repealed the Naturalization Act of 1790. Nevertheless, we are still free to examine the reason why Congress passed the 1790 Act. We are not constrained from doing so by whether the statute is still in force or whether it was repealed. There are varied reasons why a statute may be repealed. We can examine that old statute and draw whatever reasonable conclusions we may concerning why Congress passed it and later repealed it.

Peter Fuller MBA CA said...

Talk about taking Minor out of context:

He is the relevant part of the decision:

"The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. 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"

Any honest person who read that passage would conclude that the decision did not define what a natural-born citizen was.

"For the purposes of this case it is not necessary to solve these doubts."

The only conclusion was that she was a citizen.

Puzo1 said...

Peter Fuller MBA CA,

Our Constitution in Article II, Section 1, Clause 5 and in other sections distinguishes between a "natural born Citizen" and a "citizen." Today, only a "natural born Citizen" may be President.

Virginia Minor, born in the U.S. to citizen parents, could not be anything but a "natural-born citizen."

The Court said that some authorities maintain that a person could also be a "citizen" by being simply born in the U.S., regardless of the person's parents' citizenship. The Court said that there was no doubt that a child born in the country to citizen parents was a "natural- born citizen." The Court added that "there have been doubts" whether a child born in the U.S. to alien parents was a "citizen."