Tisdale v. Obama and the “Natural Born Citizen” Clause
By Mario Apuzzo, Esq.
February 16, 2012
There are some supporters of putative President Barack Obama commenting on the recent 4th Circuit court decision, Tisdale v. Obama, Tisdale v. Obama, Civil Action No. 3:12-cv-00036-JAG, http://www.scribd.com/doc/80563782/Tisdale-v-Obama-et-al. which held not by published decision but by Order that any child born in the U.S. is a "natural born citizen." In Tisdale, the pro se plaintiff (not represented by an attorney), on January 23, 2012, filed in the Federal District Court of the Eastern District of Virginia, a complaint against presidential candidates, Barack Obama, Mitt Romney, and Ron Paul, seeking an injunction against the Virginia State Board of Elections from certifying any candidate who is not a “natural born Citizen” from appearing on the ballot in the upcoming general election of November 6, 2012. While the Court on January 23, 2012, granted Tisdale’s motion to proceed as a pauper which he had filed earlier on January 17, 2012, on the same day and in the same Order also dismissed his complaint with prejudice for failure to state a claim upon which relief can be granted. With all due respect for Judge Gibney, as I will show, not only has he given us an incredibly hurried decision that does not provide his own independent thoughtful and reasoned analysis of the meaning of an Article II “natural born Citizen” based on the historical and legal record, but the case citations he includes in his 2 and ½ page Order to support his decision do not provide any basis for his conclusion that any child born in the U.S. is a "natural born citizen."
Before I get to the actual “merits” of the Court’s decision, I would like to make a few preliminary comments. In Tisdale, the plaintiff was pro se which means he was not represented by an attorney. Hence, again like in 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), we have a court decision telling us what the court thinks is a “natural born Citizen,” a monumental decision given the national security implications of the issue, without the benefit of the court having received briefing by lawyers who are trained to raise all applicable issues and argue all aspects of the facts, law, and historical record that are applicable to the question of what is a “natural born Citizen.” It is very unfortunate that the two cases which have decided to decide the question of Obama's eligibility on the merits did not have the involvement of attorneys who could have provided the courts with briefs based on in-depth research.
It is basic constitutional law that a court will attempt to find a way to dispose of a case without having to address and resolve the merits of any constitutional issue. This is called judicial restraint. As I will show below, Judge Gibney, like so many of our courts before him, could have made a case for dismissing the plaintiff’s complaint on standing and thereby have avoided reaching the merits. But he nevertheless for some reason that he does not address in his order felt compelled to reach the merits. The same happened in Ankeny where the court could have easily disposed of the case strictly on a state-law issue without reaching the constitutional issue regarding what is a “natural born Citizen.” But Ankeny too, felt compelled without telling us why to reach the merits of the constitutional issue. These developments are quite concerning, not only for the sake of purity of the constitutional legal process, but given that both plaintiffs in both cases were pro se and therefore without the benefit of legal counsel.
Judge Gibney does not show in his Order how the federal district court had jurisdiction over Tisdale’s application for an injunction enjoining the Virginia State Board of Elections from certifying the defendants for the presidential ballot for lack of being “natural born Citizens.” The first thing that a federal court does before it can address the merits of any case is to demand that the parties show how the court has jurisdiction over the subject matter. Only after being satisfied that it has such jurisdiction will a federal court proceed to then address the merits of any case filed before it. We have seen this very concept unfold in the many Obama eligibility suits that have been filed in the federal courts. For example, both the New Jersey federal court and the 3rd Circuit Court of Appeals dismissed Kerchner v. Obama/Congress that I filed in the federal court in New Jersey. The court dismissed the case, finding that plaintiffs did not prove they had standing to sue Obama and Congress (the legal requirement that a plaintiff show that he or she suffered an injury caused by the defendant’s conduct for which the court can give a remedy). Since the court dismissed the case for lack of standing, it never reached the merits concerning the definition of a “natural born Citizen.” The case was first hear in the New Jersey Federal District Court and reported at Kerchner v. Obama, 669 F.Supp.2d 477 (D.N.J. 2009). 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.
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). 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 current 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. I argued that this definition has been confirmed by, among other sources, Minor v. Happersett which held in 1875 that the definition of a “natural-born citizen is that already existing under “common-law” which is “all children born in a country of parents who were its citizens.” Minor v. Happersett, 88 U.S. 162, 167-68 (1875). 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 and it could therefore not address the merits of whether Obama was a “natural born Citizen” under the proposed “common-law” definition. The Court then said that the plaintiffs’ remedy concerning Obama’s eligibility was in the vote which had to be exercised in the voting booth.
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. So, with Tisdale, we have a situation wherein the Court rendered a “merits” decision on the meaning of a “natural born Citizen” without the Court examining whether plaintiff had standing which is needed to give the court jurisdiction. And this is not even to mention that the Court did not address the heavy legal standard which a plaintiff must meet in order to be granted an injunction.
What is absolutely amazing about Tisdale is that the Court dismissed the case on the same day that plaintiff filed his complaint, January 23, 2012, by simply filing an Order. The docket of the court even has the Court’s dismissal order of January 23, 2012 as Document 2 while the complaint which was also filed on January 23, 2012 is listed as Document 3. So the Court did not even wait for the court’s clerk’s office to upload the complaint to the court’s web site or for the defendants to file an answer or a motion to dismiss for lack of standing or based on some other defense. Rather, the Court simply on its own on January 23, 2012 (the same day the complaint was filed which I presume was done either in person or by mail and not electronically) dismissed the complaint for what is written in the complaint, not even giving the pro se plaintiff the chance to brief the legal issue of the meaning of a “natural born Citizen.” The Court dismissed the complaint so quickly that the defendants did not even have to argue that the plaintiff does not have standing. The court’s sudden actions also leave us thinking how much research and thought did the Court put into its dismissal order which is based on the definition of an Article II “natural born Citizen,” a definition which in the eyes of the Founders and Framers has monumental and critical importance to the survival and preservation of the constitutional republic. The Court did not render any comprehensive decision. This Order is not a published precedential decision, and Obama’s supporter surely keep that fact out of the public discussion. Finally, on January 24, 2012 (the next day after the dismissal), plaintiff filed a Notice of Appeal to the 4th Circuit Court of Appeals where the case is currently pending.
Now let us examine the substance of the Tisdale decision:
(1) The Court in Tisdale said:
"It is well settled that those born in the United States are considered natural born citizens. See, e.g., United States v. Ark [sic meant Wong], 169 U.S. 649, 702 (1898) ('Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States.')"
But these Obama supporters only provide this part of the quote: "It is well settled that those born in the United States are considered natural born citizens."
We can note that these Obama supporters omit the Court’s citation to and parenthetical explanation of Wong Kim Ark. These supporters probably know that Wong Kim Ark’s holding does not support the Tisdale Court's holding and they just cannot bring themselves to tell us that Judge Gibney relied upon Wong Kim Ark and the parenthetical statement for his decision. We know that Article II, Section 1, Clause 5 includes both a “natural born Citizen” and “Citizen of the United States,” with only the former being eligible to be President for those born after the adoption of the Constitution. But the quote from Wong Kim Ark uses the phrase “citizen of the United States.” So how does Judge Gibney want to use Wong Kim Ark’s statement that Wong was a “citizen of the United States” to show that Obama is a “natural born Citizen?” In light of the critical constitutional distinction between a “natural born Citizen” and a “Citizen of the United States, on what basis does Judge Gibney go from Wong’s “citizen of the United States” to his “natural born Citizen?” From the clear text of the Wong holding regarding a “citizen of the United States,” Wong Kim Ark’s holding without more does not support Judge Gibney’s statement regarding a “natural born Citizen.”
Additionally, by leaving off the reference to Wong Kim Ark, these Obama supporters want to mislead the public into thinking that the Court conducted its own independent thoughtful and reasoned analysis based on the historical and legal record to arrive at its conclusion which a cursory reading of the Court’s decision shows it did not.
Again, Judge Gibney states: "It is well settled that those born in the United States are considered natural born citizens.” But the text of Article II, Section 1, Clause 5 clearly states “natural born Citizen,” not “born citizen.” We surely cannot just leave out words when we interpret a constitutional provision, especially when those words are part of a clause which as a whole is a word of art or an idiom. The Court’s statement reminds me of the guy who takes a motor apart and puts it back together again but has pieces left over. I see that the Court accounted for “born.” But what ever did it do with “natural?” Indeed, it is just one of those pieces left over. We will just throw it in the garbage. No one will ever notice.
(2) In support of its statement, "[i]t is well settled that those born in the United States are considered natural born citizens,” the Court cites Wong Kim Ark and the holding of the case. But that case and its holding do not directly relate to a “natural born Citizen.” Rather, it concerns only a “citizen of the United States” under the Fourteenth Amendment. Wong even confirmed that there is a distinction between a “natural born citizen” child born in the U.S. to citizen parents and a “citizen” child born in the U.S. to alien parents. In fact, the Wong holding that Judge Gibney provides does not even include the clause “natural born Citizen” in it. The Tisdale Court is simply putting words into the mouth of the Wong Court which are not there. There is language or the lack of language in Wong which shows that the Court recognized the distinction between a “natural born Citizen” and a “citizen of the United States,” and that it went as far as only holding Wong to be a Fourteenth Amendment “citizen of the United States” and not an Article II “natural born Citizen.”
First, the question presented and holding of the Court speak of a "citizen of the United States" under the Fourteenth Amendment, not a "natural born Citizen" under Article II. The Court stated its holding thus:
"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 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. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative."
Nowhere in the question presented or in the Court’s holding do we find the words “natural born Citizen.” Not one quote from the Court exists which shows that the Court found Wong to be a “natural born Citizen.” The Court said in its holding that it was deciding “the single question.” The only question before the Court was whether Wong was a Fourteenth Amendment “citizen.” Hence, the Court answered that “single question” and not answering any other question, surely did not also answer the question of whether Wong was also an Article II “natural born Citizen.” It did not address the question of whether he was an Article II “natural born Citizen,” which would involve a different question than the one raised before the Court which involved only the Fourteenth Amendment.
Second, Wong Kim Ark cited and quoted Minor’s “common-law” definition of a “natural-born citizen,” with no criticism or distinguishing of that definition to reach its holding that Wong was a “citizen of the United States.” This is critically important because Minor had held in 1875 that the definition of a “natural-born citizen was that already existing under “common-law” which was “all children born in a country of parents who were its citizens.” Id. at 167-68. But Wong was clearly not born to citizen parents. Hence, if the Court were addressing the meaning of a “natural born Citizen,” it would have had to explain why Minor’s presentation of that definition either was wrong or did not apply. The point is that Wong Kim Ark would have had to make a comment about what Minor said was the already established “common-law” definition of a “natural born Citizen.” But we know from reading Wong Kim Ark that the only thing the Court did regarding Minor was cite and quote the definition of a “natural-born citizen” which it confirmed. If the Court was willing to abandon or distinguish that definition, it would have done so.
Third, Wong Kim Ark said, by quoting Mr. Binney: “‘The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. 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.'" Wong Kim Ark, at 169-70 (citing and quoting Horace Binney, The Alienigenae of the United States Under the Present Naturalization Laws (1853)). Both the Court and Binney erred in contending that the right to citizenship in the United States “never descends in the legal sense,” for the definition of a “natural born Citizen” is based both on inheritance of citizenship from citizen parents which concept emanates strictly from natural law and on acquiring citizenship from place of birth which has its origins in positive law. Also, note Binney’s reference to “in the country” which is directly out of Vattel Section 212’s definition of a ‘natural-born citizen.” Note also that, with the Court requiring “birth in the country” in order to acquire birthright citizenship if one does not otherwise qualify for the status under some naturalization statute, the Court recognized that only a child born “in the country” to citizen parents can be a “natural-born citizen.” The Court by this quote told us in clear words that while both a child “born in the country” to citizen parents and a child “born in the country” to alien parents are “citizens” by the mere fact of being “born in the country,” only a child born “in the country” to citizen parents is a “natural-born citizen.” The reason for this distinction is that under the English common law which the Court applied to make Wong a “citizen,” any person born in the King’s dominions and in allegiance to him, regardless of how weak that allegiance may be due to the child’s parents being aliens, was a “natural born subject.” Emer de Vattel in Section 214 of the The Law of Nations, Or, Principles of the Law of Nature (London 1797) (1st ed. Neuchatel 1758), explained that this form of granting subjectship in England was actually naturalization at birth by the only fact of being born in its dominions and without reference to the citizenship of the child’s parents (“Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner”).
Wong Kim Ark was willing to make Wong a “citizen” because he was born in the United States and his parents’ domicile in the United States at the moment of his birth created a strong enough allegiance to the United States (in the words of Lord Coke and Blackstone local and temporary) which was “strong enough to make a natural subject, for if he hath issue here, that issue is a natural born subject.” Calvin’s Case, 7 Rep. 6a (1608). Wong Kim Ark. 169 U.S. at 693. Yet that allegiance was not as strong as if the parents had been citizens of the United States and therefore not strong enough to make Wong a “natural-born citizen.” Under American constitutional “common-law,” which in the area of national citizenship is based on natural law and the law of nations (a combination of natural law and positive law), such local and temporary allegiance in the child’s parents could be strong enough to satisfy the “subject to the jurisdiction” requirement of the Fourteenth Amendment, but it could never be strong enough to make a “natural born Citizen,” which is the exacting standard used in our Constitution for presidential eligibility. Wong Kim Ark found that both of these factual scenarios satisfied the Fourteenth Amendment’s “jurisdiction” clause and therefore produced citizenship by the mere fact of being born in the country, but recognized that only the latter were “natural born Citizens.”
Wong Kim Ark used the English common law to give current meaning to the Fourteenth Amendment. Of course, with no such amendment existing when the Founders and Framers drafted the Constitution, they would not have had any need to look to the English common law for such assistance. Furthermore, the Founders and Framers would never have adopted the English common law standard of a “natural born subject” to define an Article II “natural born Citizen.” And we can be assured of this because, among the many other existing sources revealing this fact, James Madison tells us this. In The Federalist No. 42 (J. Madison), Madison said:
"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, and is a still greater improvement on the articles of Confederation. These articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations. The provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. The definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite. 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."
So Madison, who was given the title of "Father of the Constitution" by his own colleagues at the constitutional convention of 1787 and who supported a strong national executive, http://www.montpelier.org/explore/james_madison/father_constitution.php, told us in no uncertain words that the English common law “would be a dishonorable and illegitimate guide” for providing a definition for “felonies” which is a term that is included in the Constitution. Madison objected to using the English common law as a source by which to define “felonies” because of its “loose signification” within that law. He even objected to using English statutes because of their “various import” on the matter. He explained that neither the common law nor statute law of England could provide the standard to define “felonies,” a term in the Constitution, unless that law was accepted in the United States “by legislative adoption,” which it was not. He also emphasized that there was a need for “certainty and uniformity” in the standard to be established for the definition of “felonies.” There can be little doubt that on providing a definitional standard for a “natural born Citizen,” Madison would have echoed the same sentiments. The English common law also provided a very loose standard for defining a “natural born subject,” for it included therein both persons born in the King’s dominions to English “natural born subjects” and born there to aliens, and persons who through naturalization after birth were also called “natural born subjects.” There exists no evidence that the English common law was ever adopted by the Founders and Framers to define a “natural born Citizen.” Because of the loose definition under the English common law of a “natural born subject,” that law also did not provide “certainty and uniformity.” Finally, he would also have considered the English common law as "a dishonorable and illegitimate guide” for defining who could be President and Commander in Chief of the Military in the new constitutional republic which had been recently created by a bloody revolution fought against that same very nation. For further reading on my position that the Founders and Framers relied upon the law of nations and not the English common law to define an Article II “natural born Citizen,” see my August 20, 2009 essay entitled, “'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,” accessed at http://puzo1.blogspot.com/2009/08/law-of-nations-and-not-english-common.html.
All this is critical since the original and amended Constitution, all Acts of Congress, and treaties read as a whole show that there is a distinction between a “natural born Citizen” and a “citizen of the United States,” with Article II, Section 1, Clause 5 requiring that for those born after the adoption of the Constitution, a “Citizen of the United States” is not sufficient for presidential eligibility and that rather one must be a “natural born Citizen.”
(3) Judge Gibney cites Perkins v. Elg, 99 F.2d 408, 409 (1938), but that case supports the plaintiff’s position and not the Court’s. In that case, the child was born in the United States to citizen parents. The lower court found Elg to be a “natural born citizen.” The U.S. Supreme Court confirmed that decision. How can that case be cited for the proposition that a child born in the United States is a “natural born Citizen” when those were not the facts of the case and surely not the holding of the Court? What is also odd is that Judge Gibney cited the Circuit Court decision but failed to note that the case was appealed to the U.S. Supreme Court which rendered a decision reported at Perkins v. Elg, 307 U.S. 325 (1939) (The U.S. Supreme Court affirmed the lower court ruling which found that Elg who was born in the United States to citizen parents was a “natural born citizen”).
(4) Judge Gibney cites the Fourteenth Amendment as support for his statement that a “natural born citizen” is any child born in the United States. But as the U.S. Supreme Court in Minor v. Happersett (1875) explained, that amendment does not provide the standard for defining a “natural born Citizen” and in fact does not even mention the clause. Even Wong Kim Ark, when it gave us its definition of a “natural born Citizen,” cited and quoted Minor and made no reference to the Fourteenth Amendment as it did in deciding whether Wong, who was born to alien parents, was a “citizen of the United States.”
The Fourteenth Amendment is part of the Constitution and was already passed in 1875 when the U.S. Supreme Court decided Minor. So when Minor said that the definition of a “natural born Citizen” was not in the Constitution it also meant that it was not found in the Fourteenth Amendment. Rather, the Court said that the definition of a “natural born Citizen” was found in the “common-law” with which the Founders and Framers were very familiar. The Court then told us how that “common-law” defined a “natural born citizen.” Relying upon that “common-law,” it defined a “natural-born citizen” as a child born in a country to citizen parents. Given the definition that it gave, which included the constituent element of citizen parents, clearly the Court did not rely upon any English common law which does not include such a requirement. Rather, the Court relied upon American “common-law” which had its origins in natural law and the law of nations, as commented upon by Emer de Vattel in The Law of Nations, Section 212. In fact, Minor’s definition of a “natural born Citizen” is almost word for word Vattel’s definition of a “natural-born citizen” found in Section 212.
Another point is that Minor said that “[t]he Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that." By the use of the word “shall,” we can see that the Court set out to find a definition of the clause “natural born Citizen,” not just one example or description of a “natural born Citizen.” It would make little sense for a court to want to determine whether one is a “natural-born citizen” and not first search for a definition of the term. And Minor did provide the definition of a “natural-born citizen” about which it said there were no doubts. On the other hand, it said that “there have been doubts” as to the meaning of a “citizen,” referring to a Fourteenth Amendment “citizen of the United States,” which we know in Minor’s definition of a “natural-born citizen” related to the parents of a “natural-born citizen,” but not to a “natural-born citizen” himself or herself.
(5) Finally, what is worse, none of the citations provided by Judge Gibney in his Order sufficiently support his conclusion that any child born in the United States, regardless of the citizenship status of his or her parents, is a “natural born Citizen.” Judge Gibney cites Hollander v. McCain, 566 F.Supp.2d 63 (D.N.H. 2008), in support of his on-the- merits dismissal with prejudice of Tisdale’s complaint for failure to state a claim. Judge Gibney, in citing that case, provided this quote:
"Moreover, 'those born ‘in the United States, and subject to the jurisdiction thereof,’ . . . have been considered American citizens under American law in effect since the time of the founding . . . and thus eligible for the presidency' (Hollander v. McCain, 566 F.Supp.2d 63, 66 (D.N.H. 2008)."
What Judge Gibney did here is take two separate statements that came from two different courts (Wong Kim Ark and Schneider v. Rusk, 377 U.S. 163 (1964)) and joined them with ellipses to give the appearance that Hollander made that full statement. First, as I will show below, the court dismissed the Hollander case for plaintiff’s failure to prove Article III standing. A dismissal for lack of standing means that the court found it had no subject matter jurisdiction. If a court has no subject matter jurisdiction, it cannot decide anything in the case other than having decided that it had no jurisdiction and therefore dismissing the case. Hence, Hollander could not have provided any substantive explanation or conclusion on what is a “natural born Citizen.” But even though Hollander said that it did not “reach the rest of the parties’ arguments, including, most notably, the question of McCain’s constitutional eligibility to be President,” it still as “Background” provided its opinion as to the law to be applied in defining a “natural born Citizen,” and even citing and quoting Wong Kim Ark and Schneider, although as I have shown above, in an inaccurate manner.
Second, the Hollander case did not decide what Judge Gibney says it decided. What is amazing about the Hollander case is that it did not rely on Wong Kim Ark to find that any person born in the United States is a “natural born Citizen” and therefore eligible to be President. Rather, it only relied upon Wong Kim Ark to confirm, again while not having any jurisdiction, that persons born in the United States and “subject to the jurisdiction thereof” are considered “American citizens” under the Fourteenth Amendment. Again while it had no jurisdiction, Hollander then cited Schneider v. Rusk, 377 U.S. 163, 165 (1964) and relied on Schneider as if it had said in “dicta” (a statement appearing in a written court opinion made by the court in passing and not central to the court’s underlying decision) that such “American citizens” are therefore eligible to be President. Hollander did at least indicate in a parenthetical explanation that what it said Schneider said was “dicta” in Schneider itself. Here is the actual quote from Hollander upon which Judge Gibney did judicial surgery so as to create the statement I have quoted above which has no legal support from any U.S. Supreme Court decision:
"Those born 'in the United States, and subject to the jurisdiction thereof,' U.S. Const., amend. XIV, have been considered American citizens under American law in effect since the time of the founding, United States v. Wong Kim Ark, 169 U.S. 649, 674-75, 18 S.Ct. 456, 42 L.Ed. 890 (1898), and thus eligible for the presidency, see, e.g., Schneider v. Rusk, 377 U.S. 163, 165, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964) (dicta)."
Id. at 66.
Not only is Hollander mistaken that the Schneider case contains any dicta which supports its proposition that a child born in the United States without more is eligible to be President, the case does not say at all what Hollander said it said. In other words, the Schneider case itself does not support Hollander’s citation of that case for Hollander’s proposition that an “American citizen” under the Fourteenth Amendment without more is eligible to be President (again all said while Hollander had no jurisdiction). With Schneider not saying what Hollander says it says, Judge Gibney surely cannot properly rely on Hollander’s citation of the Schneider “dicta” which simply does no exist.
Let us examine what Schneider was about. The Schneider case was summarized in Rogers v. Bellei, 401 US 815 (1971), as follows:
"Schneider v. Rusk, 377 U. S. 163 (1964). Mrs. Schneider, a German national by birth, acquired United States citizenship derivatively through her mother's naturalization in the United States. She came to this country as a small child with her parents and remained here until she finished college. She then went abroad for graduate work, was engaged to a German national, married in Germany, and stayed in residence there. She declared that she had no intention of returning to the United States. In 1959, a passport was denied by the State Department on the ground that she had lost her United States citizenship under the specific provisions of § 352 (a) (1) of the Immigration and Nationality Act, 8 U. S. C. § 1484 (a) (1), by continuous residence for three years in a foreign state of which she was formerly a national. The Court, by a five-to-three vote, held the statute violative of Fifth Amendment due process because there was no like restriction against foreign residence by
native-born citizens.
The dissent (Mr. JUSTICE CLARK, joined by JUSTICES HARLAN and WHITE) based its position on what it regarded as the long acceptance of expatriating naturalized citizens who voluntarily return to residence in their native lands; possible international complications; past decisions approving the power of Congress to enact statutes of that type; and the Constitution's
distinctions between native-born and naturalized citizens."
Id. at 821.
First, Schneider has never been cited as providing any actual definition of a “natural born Citizen,” for the case does not expressly provide any such definition. Rather, Obama supporters have cited the Schneider v. Rusk case to argue that one only needs to be a “native-born” citizen to be eligible to be President. They quote:
“We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President. Art. II, § 1.
***
Distinctions between native-born and naturalized citizens in connection with foreign residence are drawn in the Constitution itself. Only a native-born may become President, Art. II, § 1.”
Id. at 165.
In Schneider, the U.S. Supreme Court voided, based on Fifth Amendment due process, a federal statute that provided that a naturalized citizen should lose his United States citizenship if, following naturalization, he resided continuously for three years in his former homeland because the same type of provision did not apply to “native-born” citizens."
In the first quote, the Court explained that a “native born” citizen and a naturalized citizen have the same rights under the Constitution. But the Court also explained that under the Constitution only a “natural born” citizen is eligible to be President. Hence, the Court properly made a distinction between a “native born” citizen and a “natural born” citizen as they apply to one being eligible to be and having the privilege of being President. In this quote, the Court said that a “natural born” citizen is not the same thing as a “native born” citizen, for the Court acknowledged a “native born” citizen but said that under the Constitution only a “natural born” citizen can be President. Given its equal protection analysis, the Court when it said “native born” citizen was actually referring to a child born in the United States and made a “citizen” under the Fourteenth Amendment and when it referred to a “natural born” citizen in relation to being President was referring to Article II, Section 1, Clause 5. The Court also said that it is necessary to be a “natural born” citizen to be President (“only the ‘natural born’ citizen is eligible to be President”), or in other words, given the definition of a “natural born” citizen, it is necessary to be born in the United States to citizen parents to be eligible to be President. So it follows from this juxtaposition of “natural born” citizen and “native born” citizen that all “natural born” citizens are “native born” citizens but not all “native born” citizens are “natural born” citizens.
The Court in the second quote said that “only” a “native-born” citizen may become President. We cannot conclude from these two quotes that the Court said that a “natural born” citizen is the same as a “native-born” citizen.” First, a “native-born” citizen after the adoption of the Fourteenth Amendment has been interpreted to mean that someone became a U.S. citizen at the moment of birth by being born in the United States rather than by naturalization after birth. Second, since a naturalized citizen has the same rights and privileges as a “native-born” citizen, making a “native-born” citizen eligible to be President would make a naturalized citizen eligible to be President. Third, these quotes also do not mean that it is sufficient to be a “native born” citizen to be President. Rather, the Court in the second quote said that it is necessary to be a “native-born” citizen to be President (“[o]nly a native-born may become President”), or in other words, it is necessary to be born in the United States in order to be eligible to be President. “Only” signified that the condition is necessary, but it does not mean that the condition is sufficient. For example, I can say that only a person who has blood is alive. But clearly having blood is not sufficient to be alive. Rather, Schneider’s statement regarding “only” a “native-born” citizen is consistent with Minor and Wong Kim Ark which as we have seen above said that a “natural-born citizen” is a child born in the country to citizen parents. As we can see, both of these decisions acknowledged that birth in the country is one of two necessary conditions needed to be met in order to be a “natural born Citizen.”
So, taking these two quotes together, the Court first recognized that only a “natural born Citizen” is eligible to be President. We have to presume that the Court knew how Minor and Wong Kim Ark defined a “natural-born citizen.” Then, in order to distinguish in the only way which is permitted by the Constitution a “native born” citizen from a naturalized citizen, the Court said that it is necessary to be a “native-born” citizen or a “citizen” by having been born in the United States to be President and that naturalized citizens cannot meet that condition. We can come to this conclusion because in the first quote the court said that under the Constitution only a “natural born” citizen can be President and in fact, the Constitution uses the term “natural born” citizen and not “native born” citizen. The Framers were very careful in the words that they chose to include in the Constitution and we cannot simply replace one term for another without providing any reason and analysis for doing so. And we must presume that the Schneider Court knew how Minor and Wong Kim Ark defined a “natural born” citizen. In short, we can read these quotes together to say that: (1) all “natural born” citizens are “native born” citizens, but not all “native born” citizens are “natural born” citizens; (2) a “native born” citizen, if also born to citizen parents is a “natural born” citizen, but a naturalized citizen may never be; (3) only a “native born” citizen who is born to citizen parents is a “natural born” citizen and eligible to be President.
Hence, what we learn from the Schneider decision is that a person must be a “natural born” citizen to be President. This is correct, for the actual text of Article II, Section 1, Clause 5 uses “natural born Citizen” and not “native born” citizen. We also learn from this case that in order to be a “natural born” citizen, it is necessary but not sufficient that one is a “native born” citizen, which both Minor and Wong Kim Ark confirm. Finally, while the Court did not define a “natural born” citizen, we know that an Article II “natural born Citizen” is a child born in the country to a U.S. citizen father and mother.
Furthermore, the Court in Hollander dismissed plaintiff’s claim that John McCain was not a "natural born Citizen" on the ground that Hollander failed to prove Article III standing to make that claim. The Hollander court never reached the merits of Hollander’s argument that McCain was not a “natural born Citizen.” In fact, the Court even said that it was not relevant for its decision where McCain was born. Additionally, dismissal for lack of standing is not with prejudice. Also, when a court dismisses a case for lack of standing, it says that the court does not have subject matter jurisdiction over the matter. A court that has no jurisdiction over a case cannot decide anything about the case other than to decide whether it had jurisdiction and if it decides it does not to dismiss it for lack of jurisdiction. But Judge Gibney did reach the merits of Tisdale’s “natural born Citizen” argument, relying upon a case that was dismissed for lack of jurisdiction. How can Judge Gibney rely on a case that was dismissed for lack of jurisdiction and which never reached the merits of the meaning of a “natural born Citizen” for support for his decision which did reach the merits of that very question? The answer is that he simply cannot. There simply is nothing in the Hollander case that properly and legally supports the merits decision made by Judge Gibney on the question of what is a “natural born Citizen.” A decision on standing does not provide any merit substance as to the meaning of an Article II “natural born Citizen.” Hence, Judge Gibney's reliance on Hollander for the merits of his decision is error.
(6) As we can see, the Court in Tisdale simply cited to some cases which do not support its holding. In my article entitled, All That Is Wrong with Georgia State Judge Michael M. Malihi’s Decision that Putative President Obama Is a “Natural Born Citizen” , published on February 3, 2012 at http://puzo1.blogspot.com/2012/02/all-that-is-wrong-with-georgia-state.html., I showed how Georgia State Court ALJ, Michael Malihi, did not engage in any real analysis of the “meaning of a “natural born Citizen,” but rather just relied upon the erroneous definition of a “natural born Citizen” pronounced by the state case of Ankeny, and not that confirmed by our own U.S. Supreme Court in Minor v. Happersett in 1875. With Tisdale, again we see a court not engaging in its own thoughtful and reasoned analysis of the historical and legal meaning of a “natural born Citizen.” What is worse, it even ascribes to the cases is cites legal positions that the cases did not hold. No court seems to want to just do its own in-depth study of the meaning of a “natural born Citizen.” Rather, what we see with our courts is their citing one case for a proposition on the meaning of a “natural born Citizen” that does not exist in that case and then other later case citing those cases for that same proposition which only perpetuates the errors. In all this, the only case which serves as the anchor in all this manipulation is Wong Kim Ark, and as I have shown, the case does not stand for the proposition for which the courts are citing it.
As we can see, there are no current court cases, including Ankeny v. Governor of Indiana and Tisdale, which have convincingly shown through real historical and legal analysis that any child born in the United States, without any reference to the child’s parents’ citizenship, is a “natural born Citizen.” As hard as the courts continue to try, they just cannot seem to be able to shake off the “natural born Citizen” clause. Maybe it is because the Founders and Framers are still holding on to it for dear life. Hence, the law of nations and traditional U.S. Supreme Court American “common-law” definition of a “natural born Citizen,” which Minor in 1875 directly and Wong Kim Ark in 1898 indirectly confirmed, i.e., a child born in the country to citizen parents, stands. Anyone who wants to change it needs to either go to the U.S. Supreme Court or have a constitutional amendment passed to accomplish that.
In the meantime, Obama is building his string citation (a statement containing numerous cases by name and brief description which supports one’s legal position) of court wins. But as the old saying goes, it is not the quantity, but the quality that counts. Regardless of the number of cases that Obama can put into his string citation, they are all based on an erroneous understanding of Wong Kim Ark. As I have shown, that case does not stand for the proposition that a child born in the United States, without reference to the child’s parents’ citizenship, is a “natural born Citizen.” Rather, the Court’s holding is limited to declaring a child born in the United States to domiciled and resident alien parents is a Fourteenth Amendment “citizen of the United States.” There is nothing in the case which justifies extending the Court’s holding to include a “natural born Citizen.” We saw right in Article II, Section 1, Clause 5 that a “Citizen of the United States” is no longer eligible to be President. Rather, only a “natural born Citizen” is so eligible. Hence, Wong Kim Ark’s holding, which only goes to defining a “citizen of the United States” and not a “natural born Citizen,” cannot be used to establish anyone’s eligibility to be President.
Having shown that the Tisdale decision does not adequately answer the question of whether Obama is a “natural born Citizen,” let us consider what type of U.S. citizen Obama is. Let us assume for sake of argument that Obama was born in 1961 to a British citizen father and U.S. citizen mother, neither of whom were diplomats or military invaders. Under those facts, Obama would be a "citizen of the United States" under the Fourteenth Amendment and 8 U.S.C. Sec. 1401(a). In today's vernacular which is not constitutional language, he would be called a "native born” citizen which is what he called himself during his 2008 presidential campaign. This modern-day (post Wong Kim Ark) “native born” citizen is not to be confused with a "native or natural born citizen" as used in natural law, the law of nations, and American “common-law.” Note that Article II, Section 1, Clause 5 uses only “natural born Citizen,” a word of art, an idiom, a unitary clause, with a long ago, well-established specific definition, and this is the only clause that can be used when referring to the eligibility requirements to be President.
Before the Fourteenth Amendment and Wong Kim Ark, under the original Constitution as intended by the Founders and Framers, all our Congressional naturalization acts, and U.S. Supreme Court case law, Obama, born to a British citizen father and U.S. citizen mother, would have been an alien. Actually, upon his mother’s marriage to her British citizen father, the mother would herself have become a British subject. So Obama would have been born not only to one but to two alien parents. Regardless of whether it was one or two alien parents, Obama would have been born a British citizen. Hence, Obama would have been born with double allegiance which the Founders, Framers, and Congress did not permit. Under these birth circumstances, he surely was not in the eyes of the Founders and Framers, Congress, and the U.S. Supreme Court, a “natural born Citizen.”
It is only through Wong Kim Ark--which judicially naturalized Wong to be a "citizen of the United States" under the Fourteenth Amendment by finding that his alien parents’ domicile and residence in the United States created enough allegiance although just local and temporary (that they were subject to the laws of the United States while physically present in the country) which the Court said caused Wong to be born “subject to the jurisdiction” of the United States--that Obama if born in the United States can today be recognized as a “citizen of the United States.”
Wong Kim Ark recognized the double allegiance created in Wong by being born to alien parents and by allowing him to be a U.S. “citizen.” Still, the Court, because of its concern that so many children and adults then living in the U.S. would be considered aliens, was willing to find Wong to be a Fourteenth Amendment “citizen of the United States.” Needless to say that such policy decisions belong to Congress and not the judicial branch of government. At least Wong Kim Ark, notwithstanding its sweeping change of citizenship law in the United States through judicial naturalization, did not go so far as to hold that Wong was an Article II “natural born Citizen.” On the contrary, Wong Kim Ark recognized the difference between a “natural-born citizen” child born in the United States to citizen parents and a “citizen” child born in the United States to alien parents. Wong Kim Ark cited and quoted the American “common-law” definition of a “natural born Citizen” which Minor had confirmed in 1875. Wong Kim Ark therefore accepted that definition and did not disturb it. This means that with the time-honored American “common-law” definition of a “natural born Citizen” never having been amended by constitutional amendment, Congress (not to imply that it could), or U.S. Supreme Court decision, today a “natural born Citizen” is a child born in the country to citizen parents. This is the legally-recognized consensus definition of an Article II “natural born Citizen,” confirmed by both Minor and Wong Kim Ark. Since Obama was born to an alien father, he cannot satisfy the “citizen parents” prong of this definition. Obama is therefore, if born in the United States, a judicially naturalized Fourteenth Amendment "citizen," created by positive law (the Fourteenth Amendment and 8 U.S.C. Sec. 1401(a)) other than strictly American “common-law.” He is not an Article II "natural born Citizen," created by natural law and positive law which became the law of nations and which the United States adopted as its American “common-law.” Not being a “natural born Citizen,” Obama, like Senator Marco Rubio and Governor Bobby Jindal (both born in the United States, but not to U.S. citizen parents), is not eligible to be President and Commander in Chief of the Military.
So, assuming that Obama was born in the United States and that at the moment of his birth his father was an alien and his mother was a U.S. citizen, Obama is a "citizen of the United States" by virtue of the rule of decision of the first clause of the Fourteenth Amendment which is a positive law, but not by virtue of the rule of decision of natural law and the law of nations which is what defines an Article II “natural born Citizen,” and which rule Minor v. Happersett in 1875 confirmed had long been adopted as American “common-law” with which the Framers were familiar. Article I, Section 8, Clause 10 of the Constitution and early decisions of our U.S. Supreme Court, including Minor, and lower courts show that this “common-law” became part of Article III “Laws of the United States.” This is the legally-recognized consensus definition of an Article II “natural born Citizen.” This definition is the status quo. If Obama does not like this status quo, let him take his battle to court to see if ultimately the U.S. Supreme Court will agree or disagree with him.
Mario Apuzzo, Esq.
February 16, 2012
http://puzo1.blogspot.com/
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Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved
By Mario Apuzzo, Esq.
February 16, 2012
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| James Madison Father of the Constitution |
There are some supporters of putative President Barack Obama commenting on the recent 4th Circuit court decision, Tisdale v. Obama, Tisdale v. Obama, Civil Action No. 3:12-cv-00036-JAG, http://www.scribd.com/doc/80563782/Tisdale-v-Obama-et-al. which held not by published decision but by Order that any child born in the U.S. is a "natural born citizen." In Tisdale, the pro se plaintiff (not represented by an attorney), on January 23, 2012, filed in the Federal District Court of the Eastern District of Virginia, a complaint against presidential candidates, Barack Obama, Mitt Romney, and Ron Paul, seeking an injunction against the Virginia State Board of Elections from certifying any candidate who is not a “natural born Citizen” from appearing on the ballot in the upcoming general election of November 6, 2012. While the Court on January 23, 2012, granted Tisdale’s motion to proceed as a pauper which he had filed earlier on January 17, 2012, on the same day and in the same Order also dismissed his complaint with prejudice for failure to state a claim upon which relief can be granted. With all due respect for Judge Gibney, as I will show, not only has he given us an incredibly hurried decision that does not provide his own independent thoughtful and reasoned analysis of the meaning of an Article II “natural born Citizen” based on the historical and legal record, but the case citations he includes in his 2 and ½ page Order to support his decision do not provide any basis for his conclusion that any child born in the U.S. is a "natural born citizen."
Before I get to the actual “merits” of the Court’s decision, I would like to make a few preliminary comments. In Tisdale, the plaintiff was pro se which means he was not represented by an attorney. Hence, again like in 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), we have a court decision telling us what the court thinks is a “natural born Citizen,” a monumental decision given the national security implications of the issue, without the benefit of the court having received briefing by lawyers who are trained to raise all applicable issues and argue all aspects of the facts, law, and historical record that are applicable to the question of what is a “natural born Citizen.” It is very unfortunate that the two cases which have decided to decide the question of Obama's eligibility on the merits did not have the involvement of attorneys who could have provided the courts with briefs based on in-depth research.
It is basic constitutional law that a court will attempt to find a way to dispose of a case without having to address and resolve the merits of any constitutional issue. This is called judicial restraint. As I will show below, Judge Gibney, like so many of our courts before him, could have made a case for dismissing the plaintiff’s complaint on standing and thereby have avoided reaching the merits. But he nevertheless for some reason that he does not address in his order felt compelled to reach the merits. The same happened in Ankeny where the court could have easily disposed of the case strictly on a state-law issue without reaching the constitutional issue regarding what is a “natural born Citizen.” But Ankeny too, felt compelled without telling us why to reach the merits of the constitutional issue. These developments are quite concerning, not only for the sake of purity of the constitutional legal process, but given that both plaintiffs in both cases were pro se and therefore without the benefit of legal counsel.
Judge Gibney does not show in his Order how the federal district court had jurisdiction over Tisdale’s application for an injunction enjoining the Virginia State Board of Elections from certifying the defendants for the presidential ballot for lack of being “natural born Citizens.” The first thing that a federal court does before it can address the merits of any case is to demand that the parties show how the court has jurisdiction over the subject matter. Only after being satisfied that it has such jurisdiction will a federal court proceed to then address the merits of any case filed before it. We have seen this very concept unfold in the many Obama eligibility suits that have been filed in the federal courts. For example, both the New Jersey federal court and the 3rd Circuit Court of Appeals dismissed Kerchner v. Obama/Congress that I filed in the federal court in New Jersey. The court dismissed the case, finding that plaintiffs did not prove they had standing to sue Obama and Congress (the legal requirement that a plaintiff show that he or she suffered an injury caused by the defendant’s conduct for which the court can give a remedy). Since the court dismissed the case for lack of standing, it never reached the merits concerning the definition of a “natural born Citizen.” The case was first hear in the New Jersey Federal District Court and reported at Kerchner v. Obama, 669 F.Supp.2d 477 (D.N.J. 2009). 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.
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). 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 current 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. I argued that this definition has been confirmed by, among other sources, Minor v. Happersett which held in 1875 that the definition of a “natural-born citizen is that already existing under “common-law” which is “all children born in a country of parents who were its citizens.” Minor v. Happersett, 88 U.S. 162, 167-68 (1875). 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 and it could therefore not address the merits of whether Obama was a “natural born Citizen” under the proposed “common-law” definition. The Court then said that the plaintiffs’ remedy concerning Obama’s eligibility was in the vote which had to be exercised in the voting booth.
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. So, with Tisdale, we have a situation wherein the Court rendered a “merits” decision on the meaning of a “natural born Citizen” without the Court examining whether plaintiff had standing which is needed to give the court jurisdiction. And this is not even to mention that the Court did not address the heavy legal standard which a plaintiff must meet in order to be granted an injunction.
What is absolutely amazing about Tisdale is that the Court dismissed the case on the same day that plaintiff filed his complaint, January 23, 2012, by simply filing an Order. The docket of the court even has the Court’s dismissal order of January 23, 2012 as Document 2 while the complaint which was also filed on January 23, 2012 is listed as Document 3. So the Court did not even wait for the court’s clerk’s office to upload the complaint to the court’s web site or for the defendants to file an answer or a motion to dismiss for lack of standing or based on some other defense. Rather, the Court simply on its own on January 23, 2012 (the same day the complaint was filed which I presume was done either in person or by mail and not electronically) dismissed the complaint for what is written in the complaint, not even giving the pro se plaintiff the chance to brief the legal issue of the meaning of a “natural born Citizen.” The Court dismissed the complaint so quickly that the defendants did not even have to argue that the plaintiff does not have standing. The court’s sudden actions also leave us thinking how much research and thought did the Court put into its dismissal order which is based on the definition of an Article II “natural born Citizen,” a definition which in the eyes of the Founders and Framers has monumental and critical importance to the survival and preservation of the constitutional republic. The Court did not render any comprehensive decision. This Order is not a published precedential decision, and Obama’s supporter surely keep that fact out of the public discussion. Finally, on January 24, 2012 (the next day after the dismissal), plaintiff filed a Notice of Appeal to the 4th Circuit Court of Appeals where the case is currently pending.
Now let us examine the substance of the Tisdale decision:
(1) The Court in Tisdale said:
"It is well settled that those born in the United States are considered natural born citizens. See, e.g., United States v. Ark [sic meant Wong], 169 U.S. 649, 702 (1898) ('Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States.')"
But these Obama supporters only provide this part of the quote: "It is well settled that those born in the United States are considered natural born citizens."
We can note that these Obama supporters omit the Court’s citation to and parenthetical explanation of Wong Kim Ark. These supporters probably know that Wong Kim Ark’s holding does not support the Tisdale Court's holding and they just cannot bring themselves to tell us that Judge Gibney relied upon Wong Kim Ark and the parenthetical statement for his decision. We know that Article II, Section 1, Clause 5 includes both a “natural born Citizen” and “Citizen of the United States,” with only the former being eligible to be President for those born after the adoption of the Constitution. But the quote from Wong Kim Ark uses the phrase “citizen of the United States.” So how does Judge Gibney want to use Wong Kim Ark’s statement that Wong was a “citizen of the United States” to show that Obama is a “natural born Citizen?” In light of the critical constitutional distinction between a “natural born Citizen” and a “Citizen of the United States, on what basis does Judge Gibney go from Wong’s “citizen of the United States” to his “natural born Citizen?” From the clear text of the Wong holding regarding a “citizen of the United States,” Wong Kim Ark’s holding without more does not support Judge Gibney’s statement regarding a “natural born Citizen.”
Additionally, by leaving off the reference to Wong Kim Ark, these Obama supporters want to mislead the public into thinking that the Court conducted its own independent thoughtful and reasoned analysis based on the historical and legal record to arrive at its conclusion which a cursory reading of the Court’s decision shows it did not.
Again, Judge Gibney states: "It is well settled that those born in the United States are considered natural born citizens.” But the text of Article II, Section 1, Clause 5 clearly states “natural born Citizen,” not “born citizen.” We surely cannot just leave out words when we interpret a constitutional provision, especially when those words are part of a clause which as a whole is a word of art or an idiom. The Court’s statement reminds me of the guy who takes a motor apart and puts it back together again but has pieces left over. I see that the Court accounted for “born.” But what ever did it do with “natural?” Indeed, it is just one of those pieces left over. We will just throw it in the garbage. No one will ever notice.
(2) In support of its statement, "[i]t is well settled that those born in the United States are considered natural born citizens,” the Court cites Wong Kim Ark and the holding of the case. But that case and its holding do not directly relate to a “natural born Citizen.” Rather, it concerns only a “citizen of the United States” under the Fourteenth Amendment. Wong even confirmed that there is a distinction between a “natural born citizen” child born in the U.S. to citizen parents and a “citizen” child born in the U.S. to alien parents. In fact, the Wong holding that Judge Gibney provides does not even include the clause “natural born Citizen” in it. The Tisdale Court is simply putting words into the mouth of the Wong Court which are not there. There is language or the lack of language in Wong which shows that the Court recognized the distinction between a “natural born Citizen” and a “citizen of the United States,” and that it went as far as only holding Wong to be a Fourteenth Amendment “citizen of the United States” and not an Article II “natural born Citizen.”
First, the question presented and holding of the Court speak of a "citizen of the United States" under the Fourteenth Amendment, not a "natural born Citizen" under Article II. The Court stated its holding thus:
"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 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. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative."
Nowhere in the question presented or in the Court’s holding do we find the words “natural born Citizen.” Not one quote from the Court exists which shows that the Court found Wong to be a “natural born Citizen.” The Court said in its holding that it was deciding “the single question.” The only question before the Court was whether Wong was a Fourteenth Amendment “citizen.” Hence, the Court answered that “single question” and not answering any other question, surely did not also answer the question of whether Wong was also an Article II “natural born Citizen.” It did not address the question of whether he was an Article II “natural born Citizen,” which would involve a different question than the one raised before the Court which involved only the Fourteenth Amendment.
Second, Wong Kim Ark cited and quoted Minor’s “common-law” definition of a “natural-born citizen,” with no criticism or distinguishing of that definition to reach its holding that Wong was a “citizen of the United States.” This is critically important because Minor had held in 1875 that the definition of a “natural-born citizen was that already existing under “common-law” which was “all children born in a country of parents who were its citizens.” Id. at 167-68. But Wong was clearly not born to citizen parents. Hence, if the Court were addressing the meaning of a “natural born Citizen,” it would have had to explain why Minor’s presentation of that definition either was wrong or did not apply. The point is that Wong Kim Ark would have had to make a comment about what Minor said was the already established “common-law” definition of a “natural born Citizen.” But we know from reading Wong Kim Ark that the only thing the Court did regarding Minor was cite and quote the definition of a “natural-born citizen” which it confirmed. If the Court was willing to abandon or distinguish that definition, it would have done so.
Third, Wong Kim Ark said, by quoting Mr. Binney: “‘The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. 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.'" Wong Kim Ark, at 169-70 (citing and quoting Horace Binney, The Alienigenae of the United States Under the Present Naturalization Laws (1853)). Both the Court and Binney erred in contending that the right to citizenship in the United States “never descends in the legal sense,” for the definition of a “natural born Citizen” is based both on inheritance of citizenship from citizen parents which concept emanates strictly from natural law and on acquiring citizenship from place of birth which has its origins in positive law. Also, note Binney’s reference to “in the country” which is directly out of Vattel Section 212’s definition of a ‘natural-born citizen.” Note also that, with the Court requiring “birth in the country” in order to acquire birthright citizenship if one does not otherwise qualify for the status under some naturalization statute, the Court recognized that only a child born “in the country” to citizen parents can be a “natural-born citizen.” The Court by this quote told us in clear words that while both a child “born in the country” to citizen parents and a child “born in the country” to alien parents are “citizens” by the mere fact of being “born in the country,” only a child born “in the country” to citizen parents is a “natural-born citizen.” The reason for this distinction is that under the English common law which the Court applied to make Wong a “citizen,” any person born in the King’s dominions and in allegiance to him, regardless of how weak that allegiance may be due to the child’s parents being aliens, was a “natural born subject.” Emer de Vattel in Section 214 of the The Law of Nations, Or, Principles of the Law of Nature (London 1797) (1st ed. Neuchatel 1758), explained that this form of granting subjectship in England was actually naturalization at birth by the only fact of being born in its dominions and without reference to the citizenship of the child’s parents (“Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner”).
Wong Kim Ark was willing to make Wong a “citizen” because he was born in the United States and his parents’ domicile in the United States at the moment of his birth created a strong enough allegiance to the United States (in the words of Lord Coke and Blackstone local and temporary) which was “strong enough to make a natural subject, for if he hath issue here, that issue is a natural born subject.” Calvin’s Case, 7 Rep. 6a (1608). Wong Kim Ark. 169 U.S. at 693. Yet that allegiance was not as strong as if the parents had been citizens of the United States and therefore not strong enough to make Wong a “natural-born citizen.” Under American constitutional “common-law,” which in the area of national citizenship is based on natural law and the law of nations (a combination of natural law and positive law), such local and temporary allegiance in the child’s parents could be strong enough to satisfy the “subject to the jurisdiction” requirement of the Fourteenth Amendment, but it could never be strong enough to make a “natural born Citizen,” which is the exacting standard used in our Constitution for presidential eligibility. Wong Kim Ark found that both of these factual scenarios satisfied the Fourteenth Amendment’s “jurisdiction” clause and therefore produced citizenship by the mere fact of being born in the country, but recognized that only the latter were “natural born Citizens.”
Wong Kim Ark used the English common law to give current meaning to the Fourteenth Amendment. Of course, with no such amendment existing when the Founders and Framers drafted the Constitution, they would not have had any need to look to the English common law for such assistance. Furthermore, the Founders and Framers would never have adopted the English common law standard of a “natural born subject” to define an Article II “natural born Citizen.” And we can be assured of this because, among the many other existing sources revealing this fact, James Madison tells us this. In The Federalist No. 42 (J. Madison), Madison said:
"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, and is a still greater improvement on the articles of Confederation. These articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations. The provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. The definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite. 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."
So Madison, who was given the title of "Father of the Constitution" by his own colleagues at the constitutional convention of 1787 and who supported a strong national executive, http://www.montpelier.org/explore/james_madison/father_constitution.php, told us in no uncertain words that the English common law “would be a dishonorable and illegitimate guide” for providing a definition for “felonies” which is a term that is included in the Constitution. Madison objected to using the English common law as a source by which to define “felonies” because of its “loose signification” within that law. He even objected to using English statutes because of their “various import” on the matter. He explained that neither the common law nor statute law of England could provide the standard to define “felonies,” a term in the Constitution, unless that law was accepted in the United States “by legislative adoption,” which it was not. He also emphasized that there was a need for “certainty and uniformity” in the standard to be established for the definition of “felonies.” There can be little doubt that on providing a definitional standard for a “natural born Citizen,” Madison would have echoed the same sentiments. The English common law also provided a very loose standard for defining a “natural born subject,” for it included therein both persons born in the King’s dominions to English “natural born subjects” and born there to aliens, and persons who through naturalization after birth were also called “natural born subjects.” There exists no evidence that the English common law was ever adopted by the Founders and Framers to define a “natural born Citizen.” Because of the loose definition under the English common law of a “natural born subject,” that law also did not provide “certainty and uniformity.” Finally, he would also have considered the English common law as "a dishonorable and illegitimate guide” for defining who could be President and Commander in Chief of the Military in the new constitutional republic which had been recently created by a bloody revolution fought against that same very nation. For further reading on my position that the Founders and Framers relied upon the law of nations and not the English common law to define an Article II “natural born Citizen,” see my August 20, 2009 essay entitled, “'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,” accessed at http://puzo1.blogspot.com/2009/08/law-of-nations-and-not-english-common.html.
All this is critical since the original and amended Constitution, all Acts of Congress, and treaties read as a whole show that there is a distinction between a “natural born Citizen” and a “citizen of the United States,” with Article II, Section 1, Clause 5 requiring that for those born after the adoption of the Constitution, a “Citizen of the United States” is not sufficient for presidential eligibility and that rather one must be a “natural born Citizen.”
(3) Judge Gibney cites Perkins v. Elg, 99 F.2d 408, 409 (1938), but that case supports the plaintiff’s position and not the Court’s. In that case, the child was born in the United States to citizen parents. The lower court found Elg to be a “natural born citizen.” The U.S. Supreme Court confirmed that decision. How can that case be cited for the proposition that a child born in the United States is a “natural born Citizen” when those were not the facts of the case and surely not the holding of the Court? What is also odd is that Judge Gibney cited the Circuit Court decision but failed to note that the case was appealed to the U.S. Supreme Court which rendered a decision reported at Perkins v. Elg, 307 U.S. 325 (1939) (The U.S. Supreme Court affirmed the lower court ruling which found that Elg who was born in the United States to citizen parents was a “natural born citizen”).
(4) Judge Gibney cites the Fourteenth Amendment as support for his statement that a “natural born citizen” is any child born in the United States. But as the U.S. Supreme Court in Minor v. Happersett (1875) explained, that amendment does not provide the standard for defining a “natural born Citizen” and in fact does not even mention the clause. Even Wong Kim Ark, when it gave us its definition of a “natural born Citizen,” cited and quoted Minor and made no reference to the Fourteenth Amendment as it did in deciding whether Wong, who was born to alien parents, was a “citizen of the United States.”
The Fourteenth Amendment is part of the Constitution and was already passed in 1875 when the U.S. Supreme Court decided Minor. So when Minor said that the definition of a “natural born Citizen” was not in the Constitution it also meant that it was not found in the Fourteenth Amendment. Rather, the Court said that the definition of a “natural born Citizen” was found in the “common-law” with which the Founders and Framers were very familiar. The Court then told us how that “common-law” defined a “natural born citizen.” Relying upon that “common-law,” it defined a “natural-born citizen” as a child born in a country to citizen parents. Given the definition that it gave, which included the constituent element of citizen parents, clearly the Court did not rely upon any English common law which does not include such a requirement. Rather, the Court relied upon American “common-law” which had its origins in natural law and the law of nations, as commented upon by Emer de Vattel in The Law of Nations, Section 212. In fact, Minor’s definition of a “natural born Citizen” is almost word for word Vattel’s definition of a “natural-born citizen” found in Section 212.
Another point is that Minor said that “[t]he Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that." By the use of the word “shall,” we can see that the Court set out to find a definition of the clause “natural born Citizen,” not just one example or description of a “natural born Citizen.” It would make little sense for a court to want to determine whether one is a “natural-born citizen” and not first search for a definition of the term. And Minor did provide the definition of a “natural-born citizen” about which it said there were no doubts. On the other hand, it said that “there have been doubts” as to the meaning of a “citizen,” referring to a Fourteenth Amendment “citizen of the United States,” which we know in Minor’s definition of a “natural-born citizen” related to the parents of a “natural-born citizen,” but not to a “natural-born citizen” himself or herself.
(5) Finally, what is worse, none of the citations provided by Judge Gibney in his Order sufficiently support his conclusion that any child born in the United States, regardless of the citizenship status of his or her parents, is a “natural born Citizen.” Judge Gibney cites Hollander v. McCain, 566 F.Supp.2d 63 (D.N.H. 2008), in support of his on-the- merits dismissal with prejudice of Tisdale’s complaint for failure to state a claim. Judge Gibney, in citing that case, provided this quote:
"Moreover, 'those born ‘in the United States, and subject to the jurisdiction thereof,’ . . . have been considered American citizens under American law in effect since the time of the founding . . . and thus eligible for the presidency' (Hollander v. McCain, 566 F.Supp.2d 63, 66 (D.N.H. 2008)."
What Judge Gibney did here is take two separate statements that came from two different courts (Wong Kim Ark and Schneider v. Rusk, 377 U.S. 163 (1964)) and joined them with ellipses to give the appearance that Hollander made that full statement. First, as I will show below, the court dismissed the Hollander case for plaintiff’s failure to prove Article III standing. A dismissal for lack of standing means that the court found it had no subject matter jurisdiction. If a court has no subject matter jurisdiction, it cannot decide anything in the case other than having decided that it had no jurisdiction and therefore dismissing the case. Hence, Hollander could not have provided any substantive explanation or conclusion on what is a “natural born Citizen.” But even though Hollander said that it did not “reach the rest of the parties’ arguments, including, most notably, the question of McCain’s constitutional eligibility to be President,” it still as “Background” provided its opinion as to the law to be applied in defining a “natural born Citizen,” and even citing and quoting Wong Kim Ark and Schneider, although as I have shown above, in an inaccurate manner.
Second, the Hollander case did not decide what Judge Gibney says it decided. What is amazing about the Hollander case is that it did not rely on Wong Kim Ark to find that any person born in the United States is a “natural born Citizen” and therefore eligible to be President. Rather, it only relied upon Wong Kim Ark to confirm, again while not having any jurisdiction, that persons born in the United States and “subject to the jurisdiction thereof” are considered “American citizens” under the Fourteenth Amendment. Again while it had no jurisdiction, Hollander then cited Schneider v. Rusk, 377 U.S. 163, 165 (1964) and relied on Schneider as if it had said in “dicta” (a statement appearing in a written court opinion made by the court in passing and not central to the court’s underlying decision) that such “American citizens” are therefore eligible to be President. Hollander did at least indicate in a parenthetical explanation that what it said Schneider said was “dicta” in Schneider itself. Here is the actual quote from Hollander upon which Judge Gibney did judicial surgery so as to create the statement I have quoted above which has no legal support from any U.S. Supreme Court decision:
"Those born 'in the United States, and subject to the jurisdiction thereof,' U.S. Const., amend. XIV, have been considered American citizens under American law in effect since the time of the founding, United States v. Wong Kim Ark, 169 U.S. 649, 674-75, 18 S.Ct. 456, 42 L.Ed. 890 (1898), and thus eligible for the presidency, see, e.g., Schneider v. Rusk, 377 U.S. 163, 165, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964) (dicta)."
Id. at 66.
So, we can see from examining Hollander’s statement, that persons born in the United States and “subject to the jurisdiction thereof” are considered “American citizens” under the Fourteenth Amendment (citing Wong Kim Ark) and that such “American citizens” are therefore eligible to be President (citing dicta from Schneider), that Judge Gibney’s statement was made by joining Hollander’s two separate statements which Hollander acknowledged were made by two separate courts (Wong Kim Ark and Schneider), and that the second statement was “dicta.” But what Judge Gibney has done in his Order is erase Hollander’s notice that the statement was the product of combining two statements made by two separate courts and that the last statement was even dicta. He has created one legal principle or statement by combining the statements and using ellipsis which makes it look as though Hollander itself made the whole statement. I can just imagine the Hollander made-up statement being repeated by court after court when Hollander made no such statement. This reminds me of Judge Malihi in Georgia relying on Ankeny v. Governor of Indiana which said that Wong Kim Ark’s holding extended to declaring Wong to be a “natural born Citizen” when the Wong Kim Ark holding did no such thing.
Not only is Hollander mistaken that the Schneider case contains any dicta which supports its proposition that a child born in the United States without more is eligible to be President, the case does not say at all what Hollander said it said. In other words, the Schneider case itself does not support Hollander’s citation of that case for Hollander’s proposition that an “American citizen” under the Fourteenth Amendment without more is eligible to be President (again all said while Hollander had no jurisdiction). With Schneider not saying what Hollander says it says, Judge Gibney surely cannot properly rely on Hollander’s citation of the Schneider “dicta” which simply does no exist.
Let us examine what Schneider was about. The Schneider case was summarized in Rogers v. Bellei, 401 US 815 (1971), as follows:
"Schneider v. Rusk, 377 U. S. 163 (1964). Mrs. Schneider, a German national by birth, acquired United States citizenship derivatively through her mother's naturalization in the United States. She came to this country as a small child with her parents and remained here until she finished college. She then went abroad for graduate work, was engaged to a German national, married in Germany, and stayed in residence there. She declared that she had no intention of returning to the United States. In 1959, a passport was denied by the State Department on the ground that she had lost her United States citizenship under the specific provisions of § 352 (a) (1) of the Immigration and Nationality Act, 8 U. S. C. § 1484 (a) (1), by continuous residence for three years in a foreign state of which she was formerly a national. The Court, by a five-to-three vote, held the statute violative of Fifth Amendment due process because there was no like restriction against foreign residence by
native-born citizens.
The dissent (Mr. JUSTICE CLARK, joined by JUSTICES HARLAN and WHITE) based its position on what it regarded as the long acceptance of expatriating naturalized citizens who voluntarily return to residence in their native lands; possible international complications; past decisions approving the power of Congress to enact statutes of that type; and the Constitution's
distinctions between native-born and naturalized citizens."
Id. at 821.
First, Schneider has never been cited as providing any actual definition of a “natural born Citizen,” for the case does not expressly provide any such definition. Rather, Obama supporters have cited the Schneider v. Rusk case to argue that one only needs to be a “native-born” citizen to be eligible to be President. They quote:
“We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President. Art. II, § 1.
***
Distinctions between native-born and naturalized citizens in connection with foreign residence are drawn in the Constitution itself. Only a native-born may become President, Art. II, § 1.”
Id. at 165.
In Schneider, the U.S. Supreme Court voided, based on Fifth Amendment due process, a federal statute that provided that a naturalized citizen should lose his United States citizenship if, following naturalization, he resided continuously for three years in his former homeland because the same type of provision did not apply to “native-born” citizens."
In the first quote, the Court explained that a “native born” citizen and a naturalized citizen have the same rights under the Constitution. But the Court also explained that under the Constitution only a “natural born” citizen is eligible to be President. Hence, the Court properly made a distinction between a “native born” citizen and a “natural born” citizen as they apply to one being eligible to be and having the privilege of being President. In this quote, the Court said that a “natural born” citizen is not the same thing as a “native born” citizen, for the Court acknowledged a “native born” citizen but said that under the Constitution only a “natural born” citizen can be President. Given its equal protection analysis, the Court when it said “native born” citizen was actually referring to a child born in the United States and made a “citizen” under the Fourteenth Amendment and when it referred to a “natural born” citizen in relation to being President was referring to Article II, Section 1, Clause 5. The Court also said that it is necessary to be a “natural born” citizen to be President (“only the ‘natural born’ citizen is eligible to be President”), or in other words, given the definition of a “natural born” citizen, it is necessary to be born in the United States to citizen parents to be eligible to be President. So it follows from this juxtaposition of “natural born” citizen and “native born” citizen that all “natural born” citizens are “native born” citizens but not all “native born” citizens are “natural born” citizens.
The Court in the second quote said that “only” a “native-born” citizen may become President. We cannot conclude from these two quotes that the Court said that a “natural born” citizen is the same as a “native-born” citizen.” First, a “native-born” citizen after the adoption of the Fourteenth Amendment has been interpreted to mean that someone became a U.S. citizen at the moment of birth by being born in the United States rather than by naturalization after birth. Second, since a naturalized citizen has the same rights and privileges as a “native-born” citizen, making a “native-born” citizen eligible to be President would make a naturalized citizen eligible to be President. Third, these quotes also do not mean that it is sufficient to be a “native born” citizen to be President. Rather, the Court in the second quote said that it is necessary to be a “native-born” citizen to be President (“[o]nly a native-born may become President”), or in other words, it is necessary to be born in the United States in order to be eligible to be President. “Only” signified that the condition is necessary, but it does not mean that the condition is sufficient. For example, I can say that only a person who has blood is alive. But clearly having blood is not sufficient to be alive. Rather, Schneider’s statement regarding “only” a “native-born” citizen is consistent with Minor and Wong Kim Ark which as we have seen above said that a “natural-born citizen” is a child born in the country to citizen parents. As we can see, both of these decisions acknowledged that birth in the country is one of two necessary conditions needed to be met in order to be a “natural born Citizen.”
So, taking these two quotes together, the Court first recognized that only a “natural born Citizen” is eligible to be President. We have to presume that the Court knew how Minor and Wong Kim Ark defined a “natural-born citizen.” Then, in order to distinguish in the only way which is permitted by the Constitution a “native born” citizen from a naturalized citizen, the Court said that it is necessary to be a “native-born” citizen or a “citizen” by having been born in the United States to be President and that naturalized citizens cannot meet that condition. We can come to this conclusion because in the first quote the court said that under the Constitution only a “natural born” citizen can be President and in fact, the Constitution uses the term “natural born” citizen and not “native born” citizen. The Framers were very careful in the words that they chose to include in the Constitution and we cannot simply replace one term for another without providing any reason and analysis for doing so. And we must presume that the Schneider Court knew how Minor and Wong Kim Ark defined a “natural born” citizen. In short, we can read these quotes together to say that: (1) all “natural born” citizens are “native born” citizens, but not all “native born” citizens are “natural born” citizens; (2) a “native born” citizen, if also born to citizen parents is a “natural born” citizen, but a naturalized citizen may never be; (3) only a “native born” citizen who is born to citizen parents is a “natural born” citizen and eligible to be President.
Hence, what we learn from the Schneider decision is that a person must be a “natural born” citizen to be President. This is correct, for the actual text of Article II, Section 1, Clause 5 uses “natural born Citizen” and not “native born” citizen. We also learn from this case that in order to be a “natural born” citizen, it is necessary but not sufficient that one is a “native born” citizen, which both Minor and Wong Kim Ark confirm. Finally, while the Court did not define a “natural born” citizen, we know that an Article II “natural born Citizen” is a child born in the country to a U.S. citizen father and mother.
Furthermore, the Court in Hollander dismissed plaintiff’s claim that John McCain was not a "natural born Citizen" on the ground that Hollander failed to prove Article III standing to make that claim. The Hollander court never reached the merits of Hollander’s argument that McCain was not a “natural born Citizen.” In fact, the Court even said that it was not relevant for its decision where McCain was born. Additionally, dismissal for lack of standing is not with prejudice. Also, when a court dismisses a case for lack of standing, it says that the court does not have subject matter jurisdiction over the matter. A court that has no jurisdiction over a case cannot decide anything about the case other than to decide whether it had jurisdiction and if it decides it does not to dismiss it for lack of jurisdiction. But Judge Gibney did reach the merits of Tisdale’s “natural born Citizen” argument, relying upon a case that was dismissed for lack of jurisdiction. How can Judge Gibney rely on a case that was dismissed for lack of jurisdiction and which never reached the merits of the meaning of a “natural born Citizen” for support for his decision which did reach the merits of that very question? The answer is that he simply cannot. There simply is nothing in the Hollander case that properly and legally supports the merits decision made by Judge Gibney on the question of what is a “natural born Citizen.” A decision on standing does not provide any merit substance as to the meaning of an Article II “natural born Citizen.” Hence, Judge Gibney's reliance on Hollander for the merits of his decision is error.
(6) As we can see, the Court in Tisdale simply cited to some cases which do not support its holding. In my article entitled, All That Is Wrong with Georgia State Judge Michael M. Malihi’s Decision that Putative President Obama Is a “Natural Born Citizen” , published on February 3, 2012 at http://puzo1.blogspot.com/2012/02/all-that-is-wrong-with-georgia-state.html., I showed how Georgia State Court ALJ, Michael Malihi, did not engage in any real analysis of the “meaning of a “natural born Citizen,” but rather just relied upon the erroneous definition of a “natural born Citizen” pronounced by the state case of Ankeny, and not that confirmed by our own U.S. Supreme Court in Minor v. Happersett in 1875. With Tisdale, again we see a court not engaging in its own thoughtful and reasoned analysis of the historical and legal meaning of a “natural born Citizen.” What is worse, it even ascribes to the cases is cites legal positions that the cases did not hold. No court seems to want to just do its own in-depth study of the meaning of a “natural born Citizen.” Rather, what we see with our courts is their citing one case for a proposition on the meaning of a “natural born Citizen” that does not exist in that case and then other later case citing those cases for that same proposition which only perpetuates the errors. In all this, the only case which serves as the anchor in all this manipulation is Wong Kim Ark, and as I have shown, the case does not stand for the proposition for which the courts are citing it.
As we can see, there are no current court cases, including Ankeny v. Governor of Indiana and Tisdale, which have convincingly shown through real historical and legal analysis that any child born in the United States, without any reference to the child’s parents’ citizenship, is a “natural born Citizen.” As hard as the courts continue to try, they just cannot seem to be able to shake off the “natural born Citizen” clause. Maybe it is because the Founders and Framers are still holding on to it for dear life. Hence, the law of nations and traditional U.S. Supreme Court American “common-law” definition of a “natural born Citizen,” which Minor in 1875 directly and Wong Kim Ark in 1898 indirectly confirmed, i.e., a child born in the country to citizen parents, stands. Anyone who wants to change it needs to either go to the U.S. Supreme Court or have a constitutional amendment passed to accomplish that.
In the meantime, Obama is building his string citation (a statement containing numerous cases by name and brief description which supports one’s legal position) of court wins. But as the old saying goes, it is not the quantity, but the quality that counts. Regardless of the number of cases that Obama can put into his string citation, they are all based on an erroneous understanding of Wong Kim Ark. As I have shown, that case does not stand for the proposition that a child born in the United States, without reference to the child’s parents’ citizenship, is a “natural born Citizen.” Rather, the Court’s holding is limited to declaring a child born in the United States to domiciled and resident alien parents is a Fourteenth Amendment “citizen of the United States.” There is nothing in the case which justifies extending the Court’s holding to include a “natural born Citizen.” We saw right in Article II, Section 1, Clause 5 that a “Citizen of the United States” is no longer eligible to be President. Rather, only a “natural born Citizen” is so eligible. Hence, Wong Kim Ark’s holding, which only goes to defining a “citizen of the United States” and not a “natural born Citizen,” cannot be used to establish anyone’s eligibility to be President.
Having shown that the Tisdale decision does not adequately answer the question of whether Obama is a “natural born Citizen,” let us consider what type of U.S. citizen Obama is. Let us assume for sake of argument that Obama was born in 1961 to a British citizen father and U.S. citizen mother, neither of whom were diplomats or military invaders. Under those facts, Obama would be a "citizen of the United States" under the Fourteenth Amendment and 8 U.S.C. Sec. 1401(a). In today's vernacular which is not constitutional language, he would be called a "native born” citizen which is what he called himself during his 2008 presidential campaign. This modern-day (post Wong Kim Ark) “native born” citizen is not to be confused with a "native or natural born citizen" as used in natural law, the law of nations, and American “common-law.” Note that Article II, Section 1, Clause 5 uses only “natural born Citizen,” a word of art, an idiom, a unitary clause, with a long ago, well-established specific definition, and this is the only clause that can be used when referring to the eligibility requirements to be President.
Before the Fourteenth Amendment and Wong Kim Ark, under the original Constitution as intended by the Founders and Framers, all our Congressional naturalization acts, and U.S. Supreme Court case law, Obama, born to a British citizen father and U.S. citizen mother, would have been an alien. Actually, upon his mother’s marriage to her British citizen father, the mother would herself have become a British subject. So Obama would have been born not only to one but to two alien parents. Regardless of whether it was one or two alien parents, Obama would have been born a British citizen. Hence, Obama would have been born with double allegiance which the Founders, Framers, and Congress did not permit. Under these birth circumstances, he surely was not in the eyes of the Founders and Framers, Congress, and the U.S. Supreme Court, a “natural born Citizen.”
It is only through Wong Kim Ark--which judicially naturalized Wong to be a "citizen of the United States" under the Fourteenth Amendment by finding that his alien parents’ domicile and residence in the United States created enough allegiance although just local and temporary (that they were subject to the laws of the United States while physically present in the country) which the Court said caused Wong to be born “subject to the jurisdiction” of the United States--that Obama if born in the United States can today be recognized as a “citizen of the United States.”
Wong Kim Ark recognized the double allegiance created in Wong by being born to alien parents and by allowing him to be a U.S. “citizen.” Still, the Court, because of its concern that so many children and adults then living in the U.S. would be considered aliens, was willing to find Wong to be a Fourteenth Amendment “citizen of the United States.” Needless to say that such policy decisions belong to Congress and not the judicial branch of government. At least Wong Kim Ark, notwithstanding its sweeping change of citizenship law in the United States through judicial naturalization, did not go so far as to hold that Wong was an Article II “natural born Citizen.” On the contrary, Wong Kim Ark recognized the difference between a “natural-born citizen” child born in the United States to citizen parents and a “citizen” child born in the United States to alien parents. Wong Kim Ark cited and quoted the American “common-law” definition of a “natural born Citizen” which Minor had confirmed in 1875. Wong Kim Ark therefore accepted that definition and did not disturb it. This means that with the time-honored American “common-law” definition of a “natural born Citizen” never having been amended by constitutional amendment, Congress (not to imply that it could), or U.S. Supreme Court decision, today a “natural born Citizen” is a child born in the country to citizen parents. This is the legally-recognized consensus definition of an Article II “natural born Citizen,” confirmed by both Minor and Wong Kim Ark. Since Obama was born to an alien father, he cannot satisfy the “citizen parents” prong of this definition. Obama is therefore, if born in the United States, a judicially naturalized Fourteenth Amendment "citizen," created by positive law (the Fourteenth Amendment and 8 U.S.C. Sec. 1401(a)) other than strictly American “common-law.” He is not an Article II "natural born Citizen," created by natural law and positive law which became the law of nations and which the United States adopted as its American “common-law.” Not being a “natural born Citizen,” Obama, like Senator Marco Rubio and Governor Bobby Jindal (both born in the United States, but not to U.S. citizen parents), is not eligible to be President and Commander in Chief of the Military.
So, assuming that Obama was born in the United States and that at the moment of his birth his father was an alien and his mother was a U.S. citizen, Obama is a "citizen of the United States" by virtue of the rule of decision of the first clause of the Fourteenth Amendment which is a positive law, but not by virtue of the rule of decision of natural law and the law of nations which is what defines an Article II “natural born Citizen,” and which rule Minor v. Happersett in 1875 confirmed had long been adopted as American “common-law” with which the Framers were familiar. Article I, Section 8, Clause 10 of the Constitution and early decisions of our U.S. Supreme Court, including Minor, and lower courts show that this “common-law” became part of Article III “Laws of the United States.” This is the legally-recognized consensus definition of an Article II “natural born Citizen.” This definition is the status quo. If Obama does not like this status quo, let him take his battle to court to see if ultimately the U.S. Supreme Court will agree or disagree with him.
Mario Apuzzo, Esq.
February 16, 2012
http://puzo1.blogspot.com/
####
Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved
Fact: The cutoff date for which the laws of England were considered to have been incorporated into what is know as the "common law" of the United States was 1607.
ReplyDelete“The only principles of law, then, that can be regarded, are those common to all the States. I know of none such, which can affect this case, but those that are derived from what is properly termed "the common law," a law which I presume is the ground-work of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of Legislation controuls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country.” ~Chisholm v Georgia SCOTUS (1793)
That first settlement was Jamestown, VA in 1607.
Calvin's Case was 1608. Therefore Calvin's Case was not the law of the United States. To suggest that it was (Mario Apuzzo does not appear to be doing so) is repugnant to the law established by our WRITTEN Constitution, and by holding of the Supreme Court.
Virginia, like numerous other states that followed, have only adopted the common law of England prior to the fourth year of the reign of James the First (1607). To impose the law resulting from Calvin's Case on Virginia (and the numerous other states) would be to impose law upon them in a manner that violates the terms of the U.S. Constitution.
It should also be noted that men like Binney and Rawle were abolitionists. These were honorable men, and their cause was surely a noble one (and the correct path for this country and all of mankind) However, their effort to convince others that the common law of England (including Calvin's Case) was the law of the United States had no legal foundation.
I replied on my blog:
ReplyDeletehttp://rcradioblog.wordpress.com/2012/02/07/mario-time-to-putz-up-or-shut-up/#comment-788
Mario Apuzzo finally got around to addressing the Tisdale v Obama decision with a long post on his poorly named blog today. As a matter of fact he wrote over 9000 words to attack Judge Gibney’s decision. However, in those 9000 words you will not find the words “and I will take up this appeal”. No Mario just spends page after page of mind numbing bloviating about how Judge Gibney was wrong. I will not engage in a point by point refutation of his waste of bandwidth and storage space but a few things stood out for me.
Mario makes the following admission towards the end of his diatribe:
“In the meantime, Obama is building his string citation (a statement containing numerous cases by name and brief description which supports one’s legal position) of court wins. But as the old saying goes, it is not the quantity, but the quality that counts. Regardless of the number of cases that Obama can put into his sting citation, they are all based on an erroneous understanding of Wong Kim Ark.”
At least Mario is almost accepting of reality here. Yes, the courts are starting to look at the nonsense that is the two parent citizen theory and they are rejecting it in case after case. But he is wrong, in the courts, quantity does count for something. When multiple jurists come to the same conclusion that is very significant. That is opposed to the Birther parade of unqualified experts in computer graphics and the law who claim the Obama OFBC is a forgery or Wong Kim Ark is not the definitive case on natural born citizenship status. In one case the people who are charged with deciding what the law says are in unanimous agreement. In the other case it is a bunch of Obama haters engaging in a Birther circle jerk.
Mario backs off reality and retreats back into his world of absurdity when he says
“So, assuming that Obama was born in the United States and that at the moment of his birth his father was an alien and his mother was a U.S. citizen, Obama is a “citizen of the United States” by virtue of the rule of decision of the first clause of the Fourteenth Amendment which is a positive law, but not by virtue of the rule of decision of natural law and the law of nations which is what defines an Article II “natural born Citizen,” and which rule Minor v. Happersett in 1875 confirmed was adopted as American “common-law.” Article I, Section 8, Clause 10 of the Constitution and early decisions of our U.S. Supreme Court, including Minor, and lower courts show that this “common-law” became part of Article III “Laws of the United States.” This is the legally-recognized consensus definition of an Article II “natural born Citizen.” This definition is the status quo. If Obama does not like this status quo, let him take his battle to court to see if ultimately the U.S. Supreme Court will agree or disagree with him.”
Pardon me? What battle does Obama need to take to the Supreme Court? Last time I look he was the President of the United States of America and not the “putative” President as you childishly refer to him. It is up to you and the Birthers to convince someone who really counts that you have a clue about the law Mario. It appears that you are content to hide behind your joke of a blog and pretend to be an expert on something about which you have not a clue.
Here is Polarik’s comment on the Soetoro Dunham divorce papers signatures. The same goes for the Obama Dunham divorce papers. Hawaii never had metal cruelty as a grounds for divorce. In legal matters an improper signature voids the document.28Polarik
ReplyDeleteMarch 11th, 2009 10:15
“All Ann Dunham signatures a total mismatch for Ann Dunham writing samples circa high school days. View the samples with source links.”
http://www.hoaxofthecentury.com/Annwriting1.htm
When I first viewed the signatures on the divorce papers, I had not seen Ann’s writing on her photo and in the yearbook. Those would be typical samples ofa left-handed writer — but, in a much later photo of Annas an adult, she has a pen or pencil in her right hand.
The only way for the divorce signatures to match those on the photo and yearbook would be if (a) Ann had an injury or neuromuscular disorder to her writing hand, and/or (b) she switched from writing lefty to righty.
However, even with people who are ambidextrous, signing with either hand produces similarities in the structure of the handwriting.
When I first viewed the divorce paper signatures, I found them to be very deliberate in their execution, with the Soetoro signature seeming even more forced.
In contrast, there is an even and consistent flow in her writings on the photo and yearbook.
The basic structure of a person’s handwriting at 18 would be the same at 28, especially one’s signature. Signatures are very resistant to change unless a person deliberately wishes to change them and spends several hours per day until he or she can write it without thinking about it.
Personality changes can also affect handwriting just as physical changes can.
The most notable discrepancies are in the way she signs “Stanley.”
In her photo and yearbook signatures, the “S” is always disconnected from the rest of the name. There is also evidence of separating initial capital letters from the small case letters in her yearbook comments.
The second most distinguishing feature is found in how she writes a case “t” in lower case. In the high school samples, the upper part of the “t” has no loop, but is a solid line, with the base being an inverted “v” shape.
In all of the divorce paper samples, all of the “t’s” have large loops their upper part.
All of the capital “S’s” in “Stanley” are separate in her high school signatures, but connected as a continuation to the loop in the “t.”
The other striking think about the divorce paper signatures are their similarities. No two signatures by the same person are ever identical. These signatures are way too similar to have been made freely and normally.
Couple that with my initial impressions of the divorce paper signatures looking “slow, deliberate, and forced,” and what you get are enough signs to suspect that forgery was involved.
http://www.therightsideoflife.com/?p=2043%20.com/?p=2043
Common sense informs us that this is the 'allegiance to ONLY the United States' term among the qualifications enumerated since no other part addresses this paramount need.
ReplyDeleteIt is clear only an American born to only American parents is what is meant by this term. Any other possibility creates a possible conflict in allegiance.
Our legal system exists to find the truth, in Obama's case it is being exploited to avoid the truth.
Our Constitution was meant to be read and digested by ordinary people using common sense.
The Honorable John Adrian Gibney, Jr was appointed to the bench on December 17, 2010 by Barack Hussein Obama Jr. Doesn't this remind one of Justice Horace Gray who was appointed to the bench on December 20, 1881 by another British national Chester Alan Arthur.
ReplyDeleteWho Should Be Eligible?
ReplyDeleteAn Important Job Qualification Question...What Would Suffice?
By Liberty4USA for Righting Our Consent Newsletter
Our Founders did not write a document that required great legal expertise or philosophical studies to understand when they drafted our Constitution. They wrote it for the people to understand by applying their own good common sense.
The document outlined a system of government that above all else was to ensure that individual liberty could not be obstructed by denying our unalienable rights, which are God-given. Neither our neighbor nor any enemy, foreign or domestic, has any authority under our system of government to infringe upon our rights. No individual is allowed to exercise his or her rights at the expense of another. Our federal governments sole purpose is to protect our rights against intrusions that our individual states would be unable to... due to their very nature.
The Founders knew that some government was necessary to maintain an orderly society and that government is force, which could be either a faithful servant or our fearful master, like fire is.
Every word of the Constitution was debated. None was accidentally or inadvertently inserted. None of these words were mere window-dressing or of no effect. Each term or clause within this brilliantly conceived document has its own merit. There are also no taboo or “birther” sections that should be avoided or not be discussed.
So as ordinary Americans we are able to look at the section that outlines the special requirements for the unique office which is given executive powers, command of the armed forces and interfaces with other sovereign nations in negotiating agreements with them. Our common sense tells us to keep in mind the overriding purpose for this document is to have a self government which keeps our liberty intact in a just society.
U.S. Constitution Article II, Section 1
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.
So, when the Founders wrote these words they were in fact finalizing (subject only to Constitutional amendment) what they thought was required for this powerful office.
What would suffice for this office?
http://libertyforus.blogspot.com/2012/02/who-should-be-eligible.html
@libertyforusa
ReplyDelete"Every word of the Constitution was debated."
My friend, you are wrong!
There is one thing that the records of the Constitutional Convention tell us was not debated. That is the very phrase which is so important to our current discussion; natural-born citizen.
John Jay sent a letter to George Washington suggesting that the Commander in Chief of the Army fall upon none other than a natural-born citizen. That letter was addressed to the one person who had previously served in that capacity, and would fully understand the importance of having such a restriction.
George knew better than anyone else what it was like to be the military leader who took up arms against a sovereign to which he owed perpetual allegiance. Ridding the future Commanders in Chief of the same burden is one of the few things that did not require deliberation or compromise.
By adopting a restriction which limited future office holders to only those who were born in the U.S. of parents who were its citizens meant that the future Commanders in Chief would only have allegiance to this country.
I think you missed something Mario. Gibney states, "It is well settled that those born in the United States are considered natural born citizens.". But we know for a FACT, which even the Obots must admit, that children of ambassadors born in the US are not citizens at all! Therefore his statement is 100% false!
ReplyDeleteMick has left a new comment on your post "Tisdale v. Obama and the “Natural Born Citizen” Cl...":
ReplyDeleteOf course this [editor's deletion] judge was appointed for just this reason. When history is against the narrative, it is necessary to change history. Orwell's vision coming true. For those not as intimately aware, these cases mean "birther's must be wrong". That's the purpose. The real sad thing about it is that the lawyers of this country are totally absent, as is academia. Treason everywhere. Unfortunately the law profession and academia is populated, in the great majority, by sellout useful idiots. Just look at the "mortgage settlement" with all the attorney generals--- pure criminality--- $26 Billion for TRILLIONS in liability. When there is no legal POTUS then there is no law, as he is supposed to be the protector of the law. Truly a travesty. It will take devine intervention, but we as a nation probably don't deserve that.
Posted by Mick to Natural Born Citizen - A Place to Ask Questions and Get the Right Answers at February 17, 2012 6:13 PM
Justin,
ReplyDeleteIt is not that I missed it. I am aware of the ambassador and invading military (which you missed) exceptions. I did not get into that because they are not relevant to Obama's situation.
Mr. Apuzzo
ReplyDeleteI trust that you have made the wise choice and have decided not to offer to take up the appeal for Mr. Tisdale. It would be a losing proposition for you. Judge Gibney made it very clear in his decision that the courts will have nothing to do with your “two parent citizen” nonsense and that Wong Kim Ark not Minor v Happersett is the defining case for determining who is a natural born citizen. By taking up the appeal you would expose yourself to ridicule when the appeal fails and to having another “frivolous appeal” added to your record. Even worse, there is the real possibility that the 4th Circuit might decide the 3rd Circuit erred in not imposing monetary sanctions against you the in the Kerchner appeal. They might decide more severe action is warranted when they see your name on another ridiculous case that would be a waste of time for the already overloaded courts.
I think confining your legal nonsense to your blog is exactly the right choice.
“Reality” Check is indifferent to the truth, and his only outlet of frustration is to lie through omission about NBC blog and Mario Apuzzo. The stories that he creates omit any factual, critical analysis of Mario’s blog posting on this issue, and yes, stories is the correct term because “reality” Check omits facts disclosed to him by Mario that he refuses to address because they destroy his fantasy.
ReplyDeleteThe low class, irresponsible behavior that people like “reality” Check exhibits is not uncommon these days. Certainly, using a name like he does is the anti-thesis of the actual meaning of the term. Liberal hacks have been using this method for quite a while. Instead of going line by line, paragraph by paragraph, invalidating Mario Apuzzo’s “Tisdale V. Obama” blog posting with valid and documentable facts, “reality” Check runs about like a spoiled child ignoring the facts in Mario’s posting, instead choosing to attacking the man’s character to avoid “reality”. You could probably trace the tactic when someone uses half truths and misinformation in their attempt to destroy the character of another person back to Marxist literature, but I have no doubt that this is also a reflection of poor breeding and a complete disregard for the basic fundamentals we all inherited from the founding fathers of our nation like Truth, Justice and the Pursuit of Happiness, or the belief in limited government instead of tyranny and despotism. That being said, the only class that “reality” Check exhibits is the acts of a low class socialist that has no use for the truth, either in whole or in part.
The failure of the socialists and Marxists, whose primary agenda is to overthrow the US Constitution, reside solely due to the work of people like Mario Apuzzo, Leo Donofrio, Orley Taitz, and all the others who, putting professional reputations on the line in peril of disgrace, to defy the communist agenda with their lives and fortunes for the benefit of Freedom and Justice, not just for themselves, but for every person who values the truth, and even those who don’t. They exhibit the finest attributes, many of which cannot be compared to anyone, but the acts of the original founding fathers when they defied the tyranny of the despotic English Crown for the freedoms so many across the world enjoy today.
It is more than obvious that “reality” Check is nothing more than a hack, probably supported by the good will of American People who have contributed money contributed to the DNC and/or BH Obama, or others like Soros funded media matters or Code Pink. The attempt to create confusion and obstruct Justice by people in places of responsibility like the Executive, Legislative, and the Judicial branches of government so that the Power vested in our Government by the People of the United States can be used as a tool to destroy the Sovereign Nation and its Constitution violates the solemn oath to protect the very same that these people pretend to represent. Their willful failure to conduct a full and complete critical analysis of the issue is their only defense for their ignorance, and treasonous to the very nation that they purport to represent.
Thanks Mario, and everyone else who has fought this battle to defend the United States Constitution.
Mario Apuzzo and all others so situated deserve the respect of every American who has inherited the rights and privileges handed down from generation to generation since the foundation of this nation. Thanks Mario. You deserve our respect and support.
4 supreme court cases that conclude the meaning of Natural Born Citizen as used in the US Constitution
ReplyDeletehttp://www.thepostemail.com/2009/10/18/4-supreme-court-cases-define-natural-born-citizen/
"IRREFUTABLE AUTHORITY HAS SPOKEN"
The Venus, 12 U.S. 8 Cranch 253 253 (1814)
Shanks v. Dupont, 28 U.S. 3 Pet. 242 242 (1830)
Minor v. Happersett , 88 U.S. 162 (1875)
United States v. Wong Kim Ark, 169 U.S. 649 (1898)
Mr. Apuzzo --
ReplyDeleteWhy don't you volunteer to take up the Tisdale appeal? You might be able to argue the merits and since he started it in pro per you will have no problems with a claim the underlying case was frivolous.
What do you have to lose?
Due to the word limit on comments adding the remainder of the piece posted above-
ReplyDeleteWhat would suffice for this office?
The person undoubtedly needs to be a citizen who had reached an age that ensured the opportunity to have enough education, maturity and experience to do the job.
He could not suddenly return to our society having lived elsewhere under foreign influence and vie immediately for the office. This person needed to establish 14 years residency. What is the plain effect of these two separate requirements?
Clearly these are requirements meant for the public to judge the suitability for office to the chief representative of the American people. It is also common sense clear that only persons that are known to us to be involved and on record as part of American society by their words and deeds could be considered eligible.
The argument over the term “natural born Citizen” is being dissected every which way for its legal meaning. If we apply common sense though, we see this special term refers to undivided American allegiance. A citizen child is not enough, the child must have parents whose ONLY allegiance is to the United States from the time he or she is born as well. Only those who needed to be “grandfathered” in at our humble beginnings were excepted from this.
Instinctively we know that the Founders would not have qualified anyone for this office who had any conflicts in allegiance for any other country like a born citizen with a foreigner parent has.
In a nutshell, our common sense tells us... only Americans, who are born that way, to only American parents, could ever be a “natural born Citizen.”
So the Founders required that only those we know are prepared for the job, are ingrained into our society with a minimum time requirement and who are “only” American at birth are eligible for consideration of the job.
It is unlikely, a person who has never proven even a broader definition of American citizenship, claimed a foreign citizen father, hidden all past ideological public writings, documents and/or foreign associations from view, and declared himself a “citizen of the world” is someone who could ever fit the requirements the Founders intended.
If they wouldn’t qualify such a person, why should we?
America has watched as the courts and media have done all they can to dismiss this question altogether.
We, along with our common sense, are left to only speculate as to why that is.
Note to "Heavy"- surely the Founders meant for allegiance to me paramount.
@winnybar
ReplyDeleteOne thing that may be a point of consideration in the text you posted is in Islam left hands are used for doing the dirty work, wiping, cleaning and such are a few things. The right hand is used for eating, writing, greetings.
Stanley may have intentionally tried to make herself right handed to better fit in with the cultural issues of being a woman and left handed in an Islamic world.
This information is only about why she may be seen in some photos with pens in her right hand when in other photos the pen is in her left, and has no bearing on the mismatching signatures on documents.
Reality Check,
ReplyDeleteI am more convinced than ever that you really do need a reality check. I do not know who you think you are but your are nothing to me and surely will not dictate what I do or will not do.
Mario
ReplyDeleteWould you agree or disagree with the following statement?
"A person naturalized by any of the 13 states one minute before ratification of the US Constitution would be eligible to become president of the United States regardless of parentage."
js and Mario,
ReplyDeleteSorry, but Mario's points just don't hold up. Nor can he answer points raised by myself and others. He has been reduced to making straw man arguments rather than actually addressing the points raised.
Oh, I know it doesn't apply to Obama. It was just meant as a little aside. The fact that a circuit court judge can make such a simple mistake, by not excluding those not "subject to the jurisdiction of", that basically invalidates his whole argument.
ReplyDeleteReality Check,
ReplyDeleteThe logic of your point proves as much as:
(1) someone who files a complaint one day after the statute of limitation has run arguing to the court that his case should still be allowed to proceed because what difference does one day make,
or
(2) your allowing a child born to two Canadian parents one foot over the United States border to be eligible to be elected President, but a child born in Canada one foot from the United States border to those same Canadian parents not to be so eligible.
May I respectfully suggest that Mario Apuzzo is from Mars and John Woodman is from Pluto.
ReplyDeletePer the 1790 Nat. Act, the alien parent had to reside in the US for at least two years to qualify for naturalization.
ReplyDeleteConsider, that under the 1790 act, if an alien arrived in the US, his wife then had a child in US, prior to two years elapsing, the child even though born in the US, is NOT a US citizen, UNTIL the two years has elapsed and the parents get naturalized, then the child is naturalized as a US citizen by DESCENT.
The subsequent act of 1795 provides for a notice period for the parent intention to naturalize and an even longer period of residency in US to qualify for naturalization, whilst all the time any children born in US to the alien are NOT even US citizens, until the alien parents naturalizes and then they become citizens BECAUSE of the status of their PARENT.
sorry woodman, your few words do not make any difference in the issue...lip service to a fools parade filled with illusions of grandeur does not prove that Mario is wrong...it would certainly take a substantial work to do that...so have at it...line by line...precept by precept...if you can jot down the truth as you see it and document it as well as Mario has his, then maybe we will listen to what you say...but face it...you didnt...you wont...you probably cant...and that makes you just a much a gaffer as the one you attempt to defend...gluck widat
ReplyDeletethe way the whole shibang works out...according to Tisdale v obama..and Ankeny v. Governor of the State of Indiana...and now the GA decision...is that vladimir putin or adolf hitler or hugo chavez or fidel castro or Mahmoud Ahmadinejad could come to the US...get a hooker pregnant...and his child would be qualified to be potus...which is a straight from the blarney stone it is...
ReplyDeletethis is how the ruling in these 3 cases view US LAW and the US CONSTITUTION...
its total bunk...the 3 judges in the cases should be under review...for the stupidity they have claimed as US LAW...and be removed from office for handing down the rulings they presented us with because they all failed to apply so many basic standards demanded of a justice of our legal system...
fire them all...if they cant follow the rules that govern thier official conduct...they deserve to pay the price
Article 3 Section 2 Clause 1:
ReplyDeleteClause 1:
"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority."
The Constitution contains Article 2 Section 1 Clause 5, naming as US Citizens: (1) natural born Citizens (born of US Citizens on US soil) (2) those present as citizens in the colonies at the time the Constitution was ratified.
Article 1 Sect. 8 Clause 4: The Legislature may make naturalization law ("Laws of the United States")to outline the addition of new citizens (members of the Union) by naturalization.
"Laws of the United States" must show discretion to the US Constitution, and shall be adjudicated as to that discretion by the judiciary.
The allowance of dual citizenship by the "Laws of the United States" shows no discretion to the 14th Amendment (US Constitution), and makes the amendment illogical, by defining "subject to the jurisdiction" the same as "within the jurisdiction" found later in the Amendment. This is a violation of the rules of statutory construction, where separate constitutional terms are deemed to have separate meaning unless expressly stated. Consequently the naturalization oath has also been made without meaning (since those that pledge it pledge singular allegiance to the US and no other foreign power).
"Citizens at birth" by the operation of the "Laws of the United States" are naturalized citizens, which may be judged as to their discretion to the US Constitution by the judiciary. Therefore "citizens at birth cannot possibly be Constitutional natural born Citizens. The Constitutionality of the assumption of US Citizenship for those born "within the jurisdiction" to alien parents has yet to be adjudicated by the SCOTUS.
John Woodman is trying real hard on Reality Check’s web site. Now he makes this argument:
ReplyDelete“James Madison, known as the ‘Father of the Constitution,’ had this to say in a speech before the House of Representatives in May of 1789 -- two short years after the "natural born citizen" clause was written: ‘It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.’”
But Woodman’s, Maskell’s, and other Obots’ reliance on Madison’s quote as a source to define a “natural born Citizen” is misplaced. Let us briefly examine what is wrong with their argument:
(1) They do not give us Madison’s complete quote, leaving off from the end of his quote, “his ancestors were among the first settlers of that colony.” They leave the “ancestor” part of the quote out because it goes to recognize that Madison did not only look to place of birth but also to parentage.
(2) William Smith, who was running for the House of Representatives, only needed to be a “Citizen of the United States” for seven years under Article I, Section 2. Hence, Madison only defined an Article I and II “Citizen of the United States” (congressional citizenship), not an Article II “natural born Citizen” (presidential citizenship).
(3) Madison did not make any reference to the English common law. South Carolina did not have any law that provided an answer on the matter and so he just gave his personal opinion on the issue. We also know from his Federalist No. 42 that Madison, who called the English common law “a dishonorable and illegitimate guide” in defining terms in the Constitution, would not have relied upon the English common law to define a “natural born Citizen” or a “Citizen of the United States.”
(4) Any English common law rule notwithstanding, the Naturalization Act of 1790, passed only one year after, abrogated in the United States any jus soli rule under the “jura coronae” or English common law in the United States. In fact, as I have been arguing for quite some time on this blog, the 1790, 1795, 1802, and other Congressional Acts up to the time before Wong Kim Ark was decided in 1898, all treated children born in the United States to alien parents as aliens themselves. These acts show that Congress, since 1790 and up to the time Wong Kim Ark was decided in 1898, adopted jus sanguinis citizenship and not jus soli citizenship.
In short, Obots like Woodman and his side kick, Reality Check, who only talk but do not play a big game, have no evidence from the Founding era showing that just being born in the United States (jus soli) after July 4, 1776, was sufficient to grant to anyone the status of a “citizen,” let alone that of a “natural born Citizen.”
You want Revolutionary period thought by the men that were there? Here's Federalist #68 by Alexander Hamilton, March, 1788:
ReplyDelete"Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention."
"Improper ascendant", noun, preceded by the indefinite article "an", means "ancestor" (1813 Websters Dictionary). So the prescription for the prevention of foreign influnce by way of an improper ancestor was to "raise a creature of their own to the chief magistrate of the union. If the raising of a creature from within the citizenry was the prescription, then a child born of a foreign, a non citizen father could not possibly be allowed. How can a Kenyan British subject be considered a proper "ascendant" (ancestor) when the purpose of the requirement was to prevent foreign influence, and the solution be to "raise a creature of their own"?
Barack Obama Sr. is an "improper ascendant'
You want Revolutionary period thought by the men that were there? Here's Federalist #68 by Alexander Hamilton, March, 1788:
ReplyDelete"Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention."
"Improper ascendant", noun, preceded by the indefinite article "an", means "ancestor" (1813 Websters Dictionary). So the prescription for the prevention of foreign influnce by way of an improper ancestor was to "raise a creature of their own to the chief magistrate of the union. If the raising of a creature from within the citizenry was the prescription, then a child born of a foreign, a non citizen father could not possibly be allowed. How can a Kenyan British subject be considered a proper "ascendant" (ancestor) when the purpose of the requirement was to prevent foreign influence, and the solution be to "raise a creature of their own"?
Barack Obama Sr. is an "improper ascendant'
Mario Apuzzo, blogger said:
ReplyDelete"The logic of your point proves as much as:
(1) someone who files a complaint one day after the statute of limitation has run arguing to the court that his case should still be allowed to proceed because what difference does one day make,
or
(2) your allowing a child born to two Canadian parents one foot over the United States border to be eligible to be elected President, but a child born in Canada one foot from the United States border to those same Canadian parents not to be so eligible."
I am not sure the point of #1 but it is correct. #2 is is also correct as that is the law. I am glad you are finally beginning to understand.
I took at looked at Mr. Tisdale's appeal. It is short and completely wrong. I am glad he based it entirely on his (and your) misinterpretation of the definition of natural born citizenship. Maybe the 4th Circuit will add a comment on the nonsense claim. Unfortunately, (for Mr. Tisdale) he completely forgot to address the other reason Judge Gibney dismissed his claim.
Maybe Mr. Donofrio can step in and file a few hundred pages of his babble in an amicus curiae brief to help out Mr. Tisdale. One can hope.
I made the case on Reality's blog (as IceTrey) that if "natural born citizen" is synonymous with "born a citizen" why even use the word "natural". Further if these two phrases are the same, exactly what part of speech is "natural"? If it is not an adverb which modifies "born" in such a way as to make it a specific type of "born" then it has no meaning at all. Would the Framers include a meaningless word in such an important document? Just the rules of grammar alone make it illogical that "natural born" and "born" are synonyms.
ReplyDeleteReality Check,
ReplyDeleteYour answer is lacking in any substance.
Also, you said: "[H]e completely forgot to address the other reason Judge Gibney dismissed his claim."
And what other reason may that be?
Justin,
ReplyDeleteHere is the logic of the Obots’ “natural born Citizen” math: Born (B) citizen(C)=natural (N) born(B) citizen(C) or otherwise stated B+C=N+B+C. For the Obots to be correct, the word “natural” would have to have 0 value.
But could the Founders and Framers, when writing presidential eligibility standards in the Constitution, have given the word “natural” 0 value? If the word “natural” has 0value, then why did the Founders and Framers use it at all? On the contrary, we know that the Founders and Framers were very careful with every word they included in the Constitution. They included each word not only for a reason, but for an important reason. After all, with the word “natural,” they not only included the word in the Constitution, but used it as a constituent element in a description relating to the eligibility standard to be met by those aspiring to be President and Commander in Chief of the Military, two singular and powerful civil and military offices.
Hence, it is asking us to go beyond what is reasonably believable to accept the Obots’ notion that the Founders and Framers would have included “natural” in reference to such important offices such as President and Commander in Chief of the Military and in such an important document as the Constitution and would have given the word 0 value. This simple logic shows that the Obots and those of like mind are wrong and that we cannot just write the word “natural” out of the “natural born Citizen” clause. It short, Obama has to be a “natural born Citizen,” not just a “born Citizen.”
Dr. Conspiracy is a mathematician, but yet he and people of like mind persist in such fundamentally flawed math.
Mario Apuzzo, blogger said:
ReplyDelete"Reality Check,
Your answer is lacking in any substance.
Also, you said: "[H]e completely forgot to address the other reason Judge Gibney dismissed his claim."
And what other reason may that be?"
I won't tell you but I will give you a hint and let you figure it out. Tee hee hee!!
http://birtherthinktank.wordpress.com/2012/02/20/birthers-some-help-on-how-to-stake-your-claim/
go figure...reality check drops a stupid bomb...
ReplyDeletenice try...but is that all ya got...ignorance and corruption just dont cut it...when you try to use it...you just chuck reality...eh?
anlysis of willful corruption
ReplyDeleteFrank Arduini(the real Frank Arduini) will debate Scott Erlandson (of WashingtonAmerica.com) on RC Radio tonight at 9 PM EST/6 PM PST. Does or does not President Obama meet the qualifications for the office of President?
ReplyDeleteThis will be real debate unlike the 5 against 1 shout over that Mark Gillar ran last month with John Woodman vs. Mara Zebest, Jerome Corsi and others. Each side will have equal uninterrupted time.
http://www.blogtalkradio.com/rcr/2012/02/22/rc-radio
Van Irion's appeal to the Georgia Supreme Court:
ReplyDeletehttp://libertylegalfoundation.org/wp-content/uploads/2012/01/Georgia-Petition-for-Appeal-and-Review-of-Final-Decision.pdf
BTW - I wonder if Dr. Conspiracy had a hand in actually creating Obama's fake long form BC file???? Read Dr. C's bio:
http://www.obamaconspiracy.org/visitor-guide/about-dr-conspiracy/
Have a Festive Shrove Tuesday and best blessings during Lent!
js,
ReplyDeleteReality Check just talks a big game. As you can see from his answer to my latest question (he simply cites some Obot web site article that talks about a federal 12(b)(6) motion to dismiss for "failure to state a claim upon which relief may be granted,"
http://birtherthinktank.wordpress.com/2012/02/20/birthers-some-help-on-how-to-stake-your-claim/), he really does not know what he is talking about.
js,
ReplyDeleteYes, indeed, the arrogance of Jack Maskell and his CRS Memo is overwhelming. Mr. Maskell is so wrong in his unsupported conclusions which are nothing more than manipulation and contrivance of historical and legal development. Simply stated, and as I have long ago argued on this blog, Lord Coke, William Blackstone, and the English common law did not determine for the Founders and Framers the definition of an Article II "natural born Citizen." To offer such a theory is just ludicrous given the extant historical and legal record which convincingly demonstrates that the Founders and Framers relied upon natural law and the law of nations, as expressed by Emer de Vattel in Section 212 et. seq. of The Law of Nations, for their definition of a “natural born Citizen” which was then and is still today a child "born in the country, of parents who are citizens." That is the standard that the Founders and Framers adopted for future presidents and commanders in chief of the military, a standard which best assures the nation that any person who is to occupy those singular and all politically powerful civil and military offices is loyal and attached only to the United States and to no other nation. All the rest of the “citizens” are simply that, “citizens,” or just members of the political society called the United States of America, who the People did not constitutionally entrust with the enormous political and military power of the President and Commander in Chief of the Military, a power which he or she is legally and morally duty bound to exercise for the sole purpose of best preserving, protecting, and defending the American People, their Constitution, and their Republic.
This seems to be a common denominator Mr A. ...
ReplyDeleteThey both lie through omission.
It violates the sacred duty entrusted to public servants, and seems to be the backbone of those like reality check.
See:
ReplyDelete5. Attempts to redefine or amend Article II “natural born Citizen” Clause of the U.S. Constitution:
Its not hard to come to the conclusion that some, or many, or even a few, key, elected officials in Congress were complicit in the omission of the truth. These are the things that make watergate small potatoes, because this is an attempt to overthrow the Constitution. Those who would do that are enemies of the United States, hence; this is treason in no uncertain words.
All citizens of the United States were first 'declared' Citizens.Why? They did not exist prior to the adoption of the U. S. Constitution.
ReplyDeletePrior to the adoption of the U. S. Constitution, a citizen could only be a citizen of a local jurisdiction. That was the common law of Britain.
Perhaps the most famous citation of this remaining is Thomas More's introduction of his famous book Utopia in which he writes "Thomas More Citizen and Sheriff of the Famous City of London."
Of course, he was also a subject, namely to "The most invincible King of England, Henry, the eighth of that name."
So, in the declaration of all as 'a citizen of the United States' was a brand new status, and declared only by the U. S. Constitution itself, at the time of its adoption.
Subsequent to the adoption, only Congress could 'declare' someone a citizen of the United States under its naturalization authority in Article I, and no Article I citizen is eligible to the Presidency.
Subsequent also to the adoption, only citizens by natural law, which is the correct understanding of 'natural-born Citizen' are eligible to the Presidency.
The only authority to define for the Framers 'citizen by natural law' is Emer de Vattel, namely 'a citizen born in the country to citizen parents.'
Everyone else is a 'declared' citizen, and not eligible to the Presidency.
Reality Check - It was John Woodman who requested the 5 on 1 format on Gillar's show. Gillar offered him to debate each 'birther' one at a time and he declined.
ReplyDeleteAnother straw man.
NEXT!!
any person born with british citizenship is NOT a natural born citizen of the USA...no matter where he was born...period...end of topic...
ReplyDeletethe natural inheritance of citizenship from father to son cannot be removed by congress
" js said...
ReplyDeleteany person born with british citizenship is NOT a natural born citizen of the USA...no matter where he was born...period...end of topic...
the natural inheritance of citizenship from father to son cannot be removed by congress
February 21, 2012 8:05 PM "
JS,
This is not entirely true.
See
RUBEN FLORES-VILLAR,
v.
UNITED STATES OF AMERICA
Oral Arguments:
http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-5801.pdf
Thats a sidestep.
ReplyDelete67 pages, and the term natural born citizen doesnt occur 1 time.
It also doesnt contain the terms remove, inherit, or congressional power.
You need to do better than that, try again Thalightguy. There is no discussion about natural citzenship being removed by congress in that PDF.
Gluck.
JS,
ReplyDeleteI was not arguing the status of natural born citizen, as to that we agree.
I was arguing the end of your comment were you say:
"...the natural inheritance of citizenship from father to son cannot be removed by congress "
The case that I pointed to did just that.
VILLAR was born in Mexico, his mother was a citizen of Mexico, his father was a citizen of the United States.
The lower courts denied his U.S. citizenship and the U.S. Supreme Court held the decision due to the vote being a tie.
@Kim Papit
ReplyDeleteI never said John Woodman didn't agree to the debate. To his credit he said he would take on all comers. Mark Gillar did a terrible job at moderation and also changed the participants and the conditions at the last minute without telling John Woodman. Woodman was supposed to have 30 minutes one on one with Jerome Corsi at the end of the debat. Instead Corsi was on at the beginning and Gillar allowed Zebest and Denninger to shout over Woodman. It was just a cluster f&^%.
The case simply states that the unmarried father didnt have a natural right to pass citizenship to his illegitimate son. This is in keeping with natural law. To become a natural born citizen, you need 2 citizen parents, we all got that down pat.
ReplyDeleteSo, the whole it in a nutshell, is if the guys father were married to his mother, the whole issue wouldnt have come up.
Actually in the Villar case he never HAD citizenship, so it wasn't taken away from him.
ReplyDeleteDr. Conspiracy is never at an end for some new gimmick designed to protect Obama. Now he is pushing on his blog the idea that his position on a “natural born Citizen” represents the view of the “real world.” Hence, he must be correct. Apart from appealing to the “real world” as his evidence that he is correct (a fallacious argument), he utterly fails to present any convincing evidence showing that English common law jus soli alone can provide enough allegiance to create a “natural born Citizen.”
ReplyDeleteDr. Conspiracy then pushes the absurd notion that when John Jay wrote in July 25, 1787 to General Washington, Jay had to have considered George Washington a “natural born citizen” because if Washington did not meet the requirement that none but a “natural born citizen” be Commander in Chief, then Washington himself would have been disqualified. The simple point that Dr. Conspiracy fails to grasp is that using his logic, then every U.S. citizen born after the adoption of the Constitution would have been eligible to be President and Commander in Chief. The "natural born Citizen" clause simply would have had no meaning. The “natural born Citizen” clause would not have had a different meaning from an Article I “Citizen.”
Dr. Conspiracy believes that the Founders and Framers only talked to themselves through writings. He conveniently forgets that they actually knew how to have personal conversations. He fails to appreciate that the Founders and Framers actually could have talked about a grandfather clause. How does Dr. Conspiracy explain that a grandfather clause actually appeared in Article II, Section 1, Clause 5?
The main difference between a conspiracy theory and a lie is omission.
ReplyDeleteA true conspiracy theory will not omit any facts, it delves into every corner and digs up every last fact, and uses it to create the theory. If those facts fail to support the theory, the theory itself falls apart.
While a liar will conveniently omit information that fails to support his theory without regard to the ethical consequences.
I see a trend with liberal leftist thinking. A very disturbing trend. They seek to twist words and common sense to their own ends, and failing that, just ignore the law. Two important current examples:
ReplyDeleteObviously the whole purpose of the NBC clause in the constitution is to be restrictive. It was clearly intended to close a loophole where people of questionable pedigree and loyalties might otherwise become president. Interpreting NBC in the most restrictive possible manner is the only possible meaningful interpretation.
A different and related manner is whether in this age of globalism and multiculti, this requirement should be deleted or changed. But until that happens, it is the law.
The other example involves immigration laws and policy. I am a firm believer that such policy should be somewhat fluid over time and that considered and well-reasoned changes (numbers allowed, geographic and ethnic mixes, etc.) should be entertained, as needed, and perhaps frequently.
But in the meantime the law is the law. Making it up as you go along - or willful lawbreaking - because you disagree, is a thumb in the eye of the Rule Of Law. This way leads only to chaos and anarchy.
This whole debate is the utmost in simplicity: 1) obey the law, 2) use the established processes to make changes to the law from time to time as needed.
Simple. Easy.
Why do liberal squirm and thrash about so?
Mario,
ReplyDeleteI have been in a ping pong game with a 'Suranis' over at the New Hampshire Herald site's article on all this, which article I'm sure you're aware of (it's via George Miller/Pamela Barnett's site). Among other historical sources he has thrown at me is a quote from James Madison, where Madison SEEMS to equate 'citizen' and 'natural born citizen' as being synonymous. Would you care to comment. (Note: I see that Madison uses the term 'natural born subjects'. Is he talking about English common law?? And if so, why, if the argument is supposed to involve American common law. Also, that quote is followed by one by a Wiliams Rawle, who is even more explicit about 'citizen' and 'natural born citizen' as being synonymous. Curious, this business...I responded as kibitzer3.)
Here's his blurb:
"Nothing you said there changes the fact that Apuzzo got eviserated in front of real lawyers on a military lawyers blog or that he came very close to sanctions on the one case he brought on this issue
But if you insist, even thouugh I am not a lawyer...
On Point 1
James Madison (The father of the Constitution), The Founders’ Constitution Volume 2, Article 1, Section 2, Clause 2, Document 6 (1789)
“It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born. Allegiance is defined to be a tie, that binds the subject to the state, and in consequence of his obedience, he is entitled to protection… The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.”
Wiliams Rawle, “Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.” (View of the Constitution of the United States of America, 1829).
Rawle was appointed by President Washington to be the United States District Attorney for Pennsylvania.
James Iredell, “No man but a NATIVE, or who has resided fourteen years in America, can be chosen President.” (North Carolina debates on the Constitution, July 30, 1788).
James Iredell was appointed to the United States Supreme Court by President Washington.
As for ""The Founding Fathers emphasized that, for the sake of the survival of the Constitutional Republic, the Office of President and Commander in Chief of the Military be free of foreign influence and intrigue." I offer this:
(cont'd)
(cont'd)
ReplyDeleteSt. George Tucker, “That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to be dreaded more than the plague.” (View of the Constitution, 1803).
St. George Tucker was a Revolutionary War hero, wounded at the battle of Yorktown. He was appointed by President Madison to United States District Court judge.
And it seems to have been a popular view
James Kent, COMMENTARIES ON AMERICAN LAW (1826)
“That provision in the constitution which requires that the president shall be a NATIVE-BORN citizen (unless he were a citizen of the United States when the constitution was adopted) is a happy means of security against foreign influence,…A very respectable political writer makes the following pertinent remarks upon this subject. “Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it.”
Your Said"As for ""Any child born on US soil is a NBC'' - a statement that you obviously agree with - is a ludicrous thought, and statement. If it were true, why wouldn't the FF have just said, in their qualifications for the particular office, that the president must be a 'citizen'?"
Becasue natural Born Was a concept that had been clearly understood for nearly 200 years, since Calvins Case in 1610. I quote
"Dy Frenchman, being in amity with the King, came into England, and subjects of this realm in treason against the King and Queen, a concluded contraligeant' suæ debitum; for he owed to the King that is, so long as he was within the King's protection; which Loa but momentary and uncertain, is yet strong enough to make a nat. he hath issue here, that issue is a natural born subject"
Its a little hard to read but its clear that a frenchman if he had issue (children) in the realm that Issue is a Natural Born Subject
And before you yell that that the framers regected english common law, even that sentance you cut out of Minor states that the framers used common law. "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"
You Said "Let's go to John Jay's letter to Washington. (Recall the name?"
Yes I do. James Kent was appointed by John Jay to the New York Chancery, so I dont think John Jay had much problems with what Kent wrote in Commentaries on American Law, would you?"
I read Tisdale's appeal in the 4th Circuit. He actually did as good as job of arguing the two parent, Minor v Happersett nonsense as Mario would have done for him. Tisdale also made a lame attempt at addressing standing saying that he was part of a class of natural born citizens who might just run for president one of these days. Can you say imaginary injury?
ReplyDeleteThe standing argument will be laughed out of court. Let's hope the 4th Circuit panel addresses the stupid NBC arguments too.
Stan,
ReplyDeleteSuranis argues: "Even your favorite case Minor vs. Happersett says flat out that the framers used English common law to determing NBC." http://www.economist.com/blogs/democracyinamerica/2012/02/birtherism-2012. Clearly this is a big lie. So how much stock can we put in the manipulative Suranis?
The common law of England, IF that is what the Minor court was referring to, requires that a child must be born to a "subject" and in England, to be a "natural born subject".
ReplyDeleteIf the father is not a "subject", then his child can not be a "subject" even if born in England.
Why or how the father is not a "subject" is irrelevant, but the father must be a "subject" (NOUN).
Therefore if "citizen" and "subject" are analogous as pointed-out in Wong Kim Ark, then for a child to be a "natural born citizen" of the US, the child must be born to a US citizen father and in the US.
Quoting from Wong Kim Ark...
"The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said:
"Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign
Page 169 U. S. 664
State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . The term 'citizen,' as understood in our law, is precisely analogous to the term 'subject' in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a 'subject of the king' is now 'a citizen of the State.'"
Quoting from English common law - Calvin's case ...
"And it is to be observed, that it is nec coelum, nec solum,54 neither the climate nor the soyl, but ligeantia and obedientia that make the subject born: for if enemies should come into the realm, and possess a town or fort, and have issue there, that ISSUE IS NO SUBJECT to the King of England, THOUGH HE BE BORN UPON HIS SOYL, and under his meridian, for that HE WAS NOT BORN UNDER THE LIGEANCE OF A SUBJECT, nor under the protection of the King."
An alien visiting US does not have the allegiance of a US citizen, therefore his child can not be a "natural born citizen" even though the child be born in US.
re; MichaelN
ReplyDeleteYou clamp on to the English common law over and over...but did you read the breakdown of what natural born was under English Common Law? NO.
Check Leo Donofrio, he did a write only this.
"The English common law has Christ at the head of its government, with the King as his main man on Earth. That was the rule of natural law for their nation. Other nations had different concepts of natural law. Again, to a Marxist/Atheist nation, science is natural law. So, with regard to the international community as governed by the Law of Nations, natural law is non-denominational, and even non-spiritual for Atheist nations."
"Hence, one could be born on English soil, in the King’s castle even, to parents who loved the King, but if the parents weren’t Christian, they could not be natural-born subjects. Instead, they were considered enemies of the King, because they refused to believe that the King was God’s monarch on Earth. This is not “natural law” to anyone who wasn’t Christian."
So much for the rabbit in the hat trick MichaelN.
How many persons commenting on the various blogs dealing with this problem both aspire to be president or vice-president and also would not qualify if Apuzzio and Donofrio were eventually shown to be right by the Supreme Courts ruling on the matter? Any? A few? A lot? The strict interpretation really seems to have lit a fire that can not be put out by inept judicial rulings in state courts or what appear to be lame rebuttals on various other blogs. Or here. Not only is the current president on shaky ground in terms of qualifications, but his idea that he can change the Constitution or find an esoteric message here & there that allows him to by-pass due process when the mood strikes him is another very serious issue. Might they be related even?
ReplyDelete@JS
ReplyDeleteThe point is that IF the Minor Happersett court was referring to English common law when it said....
"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."
and the WKA court reckons that "subject" and "citizen" are analogous, then for a child to be a "natural born Citizen" of the US, the child would need to be born to a citizen father and in the US.
Vis a vis what Stan posted, if the President must be a native-born citizen, that rules out all of those born overseas to a citizen parent. So the child of illegal aliens can be POTUS, but not the child of two citizens, who is born out of the country. Doesn't seem very fair. Not to mention that 2/3 of the worlds countries don't give ANY citizenship to the children of non-resident aliens.
ReplyDeleteThe two citizen parent nonsense theory went over like a lead balloon in Indiana today at the election board hearing. Taitz gave up after one of the commissioners mentioned Ankeny and went on to her other BS. It is great entertainment watching Mario's faux legal theories die the death of a thousand cuts.
ReplyDeleteThe logical question to ask is "Could Mario Apuzzo beat an empty table?" Orly is 0-2 against the empty table. How could you do Mario?
ReplyDeleteReality Check,
ReplyDeleteWas the definition of an Article II “natural born Citizen” even an issue during the hearing?
Orly and her client were correct when they said that they did not know that the Indiana courts had declared Obama a “citizen.” If the Commisisoners would only read Ankeny carefully, they would discover that the Court never held that Obama was born in the United States and that he was a “natural born Citizen.” Moreover, it would help if the Commission even knew that the correct presidential eligibility standard under Article II is “natural born Citizen,” not “citizen.”
As far as the rest of the hearing goes, it surely was no model of decency. At most, it was an embarrassment with how the commissioners conducted themselves. Those members were so biased and unprofessional that a 7year-old child could notice it.
Concerning my born in the country to two U.S.-citizen parent definition, it is alive and well as you can see by the millions of Americans who understand and accept it. Many now understand how to correctly read the early naturalization acts and also Jefferson’s citizenship laws, all based on jus sangunis and not jus soli. And let us not forget that many also now understand that any citizen "at birth" who is not a “natural born Citizen” is a “naturalized born citizen,” but not a “natural born Citizen.” And how can I forget the countless numbers of Americans who now understand that the definition of a “natural born Citizen,” a national citizenship standard and not a mere state citizenship status, does not come from the English common law, but rather from natural law and the law of nations which we adopted at the Founding as American common law and which became part of the “Laws of the United States” in Article III with the adoption of the Constitution.
Like I keep telling you, it is time for that reality check.
Here is the all the reality check I need:
ReplyDeletehttp://tesibria.typepad.com/whats_your_evidence/BIRTHER%2520CASE%2520LIST.pdf
Is there any way to get some type of ruling from the proper authority simply on whether the definition in Minor is precedent or dicta?
ReplyDeleteThis is what Super Obot Scholar ballantine said on February 25, 2012 at 8:19 am, at Dr. Conspiracy’s blog, in response to commentator Rowena who asked, “What kind of law made WKA [Wong Kim Ark] a naturalized citizen?”
ReplyDeleteballantine’s response: “You just show your stupidity by saying WKA was naturalized, as no one ever said such a thing except idiots like Apuzzo.”
Too bad that ballantine has not read the same cases and books that the Founders and Framers read when they drafted the Constitution. For example:
With Parliament refusing for political reasons to naturalize Calvin who was born in Scotland to alien parents, Lord Coke naturalized Calvin at birth to be an English “natural born subject.” Calvin’s Case (1608).
“Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner.” Emer de Vattel, The Law of Nations, Sec. 214 (1758).
John Woodman is filling the internet with his distortions and lies. Here is a small list:
ReplyDelete1. He says that Minor used the English common law to define a “natural born citizen.” This is a fantastic lie given that Minor required that the child be born in the country to citizen parents. We know that the English common law made all children born in the King’s dominion his life “subjects” regardless of the citizenship of the parents.
2. He says that Wong Kim Ark held that Wong was an Article II “natural born Citizen.” What the Court held is that he was a Fourteenth Amendment “citizen of the United States,” not an Article II “natural born Citizen.” Note that a “natural born Citizen” requires the child’s parents at the time of the child’s birth to be in full and complete allegiance to the United States, i.e., citizens, while a “citizen of the United States” only requires that the parents be at least in temporary allegiance to the United States by being subject to the laws of the United States. Under current judicial interpretation, this minimum requirement is met by the mere presence of the parents in the territory of the United States, regardless of whether those parents are physically present in U.S. territory with or without the permission of the United States.
3. He says that under Jefferson’s citizenship law of 1779, Jefferson allowed anyone as long as he or she was white who was born in Virginia to be a citizen thereof, regardless of whether his or her parents were citizens. He quotes Jefferson saying "that all white persons born within the territory of this commonwealth… shall be deemed citizens of this commonwealth." But he leaves out that Jefferson just a sentence down said “all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, . . . shall be deemed citizens of this commonwealth.” Mr. Woodman wants us to conclude that a child (infant) born in Virginia (Virginia certainly qualifies as “wheresoever”) to alien parents was a citizen after Jefferson just clearly told us that he was not. Mr. Woodman also wants us to believe that Jefferson required “persons” to be “white” in order to be citizens, but he did not require “infants” to be “white” in order to be citizens. So, according to Mr. Woodman, a “person” had to be “white” to be a citizen but the black child of a white citizen father and black slave mother did not have to be white in order to be a citizen. Mr. Woodman has a real hard time reading.
4. Finally, and this is the most disturbing and dark side of Mr. Woodman. He says that we should not follow the word of Emer de Vattel because being a “Swiss guy,” he does not represent “our OWN heritage, our OWN history, and our OWN legal tradition" (emphasis in the original). This is really a fantastic statement for at least two reasons. First, according to the extant historical record, Vattel was the Founders’ and Framers’ lifeblood. Second, it appears that John Woodman is a racist of a different kind. He is the type of racist who is not a racist as long as he can maintain what he deludes himself to believe is superiority over everyone else.
The transgressions against the rule of law, the fusion of the federal government into a homogenous body, and the trespasses against the people of these United States of America by the very representatives and officials sworn to uphold an oath to obey our Constitution have become commonplace. We are deep into the "Age of Pretending." Our government has become impossibly corrupt. Obama did not slip through the vetting process, he was walked across the bridge in broad daylight and vouched for by those who now lack any legitimate credibility. Those who could object–chose not to. The people have been betrayed by those we have entrusted. The sad part is that so many are still oblivious to what has happened to their country and are unprepared for the inevitable storm to come.
ReplyDeleteThose whom have sold the poison as medicine to the people have no anecdote for the mess they have created. Our only hope is that patriots stand firm on their principles and demand the truth be told and only honest statesman for leaders.
Mario,
ReplyDeleteThese cases are not ideal but when the powers at be don't play by the rules, what are we to do?
Please listen to the Indiana election committee totally ignore the rule of law. I cannot believe one of them referred to Ms. Taitz's butt! This was the most unprofessional hearing I have ever heard of.
What it is happening to our country?
LibertyForUSA - "Obama did not slip through the vetting process, he was walked across the bridge in broad daylight and vouched for by those who now lack any legitimate credibility."
ReplyDeleteYour appraisal is accurate. The antidote for poison sold as medicine, is Grace.
I ask, May God in His tender mercies once again guide Our thoughts and deeds, in peace, toward Liberty; this my most humble prayer: that Reason may prevail, that the storm not come.
There is no reasonable person who will not identify himself. There is no reasonable person who could expect us to accept such.
There is no reasonable person who could expect us to abdicate Our Responsibility, to bow Our Will.
We Refuse!
We will not bow!
We will not!
It is Your Responsibility, and Your's, and Your's, to Demand that those who do not identify themselves do so. It is Your Responsibility. It is Your Responsibility that those charged with the Duty of Office fulfill that Duty.
Do not be detered.
Do not bow your Will.
God bless the United States.
I extend the same challenge to you to debate Frank Arduini since Scott Erlandson chickened out. The same premise and format would apply. Mr. Kerchner is welcome to participate as well. I could ask John Woodman to participate also.
ReplyDeletehttp://rcradioblog.wordpress.com/2012/02/04/scott-erlandso-accepts-the-rc-radio-debate-challenge/
The Obots have no sound argument which shows that the Constitutionalists are wrong. They have exhausted what to say. So now they resort to appealing to authority rather than showing us the correctness of their position. They have no choice but to resort to appealing to such authority because they cannot demonstrate that the totality of the historical facts supports their position which is that an Article II "natural born citizen" includes any child born in the United States, regardless of the citizenship or immigration status of the parents (except children of diplomats and invading military) or any child born out of the United States to at least one U.S. citizen parent.
ReplyDeleteFor example, this is one typical answer that they give when they have nothing reasonable to say in response to the Constitutionalists. “My position is correct because courts, Secretaries of State, election commissions, lawyers of both parties” agree with me.”
The Obots forget one thing. The law is based on reason and logic that is documented by the written word. We Constitutionalists can read and understand what we read and using our reason can arrive at a logical conclusion. Not everyone gets to the right conclusion at first. But through the group discussion in which all of us engage, we, like a jury, have joined our collective intelligence to eventually get to the correct answer. The Obots think that they are the only ones who can engage in such a human intellectual activity.
We Constitutionalists have come to learn the difference between a well-reasoned and poorly reasoned argument. So far, I have yet to see one logically sound argument that supports the Obots’ position. Maybe that is because the Obot position is truly “by nature” a losing argument. The Obot argument takes on the aire of being the winning argument only from the fact that some poorly reasoned decisions have allowed it to prevail so far. And so the Obots appeal to those poor decisions to give the appearance that they are right. But they, like those who have made the decisions upon which they rely, cannot provide their own sound and logical reasons which demonstrate that they are right.
@Ray
ReplyDeleteThanks for picking up my word error. It was a case of thinking one thing– and writing another. I suppose both words apply. While the statists have no antidote for what has been wrought upon the best government the world has ever seen, they have no shortages of anecdotal stories or excuses for doing so.
Yes, we must pray for the guidance we need to act to restore this country. Unfortunately just the basic math tells us the pain or storm IS coming and unavoidable now. We cannot ever allow arbitrary law to prevail, the rule of law must win.
@Mario I laugh at the idea that your critics, who cannot phantom the logic and reason ingrained in our Constitution, much less accept its overriding purpose to limit government power, think their attorneys, whom work to circumvent it, are the real lawyers.
The left with their lackeys has their template to attack threats,isolate, marginalize and redefine the argument on their terms...they have failed in all three respects here.
You have done a great service for freedom and your country by revealing the legal truths. Thank you.
The Obots' argument that the Founders and Framers gave to an Article II “natural born Citizen” the same meaning as the English gave to an English “natural born subject” under the English common law is twofold: (1) That the English common law once prevailed in the colonies and it continued to prevail in the states and the United States after the American Revolution; (2) That the Founders and Framers, using “natural born Citizen,” utilized an English common law term. Let us briefly examine why both of these arguments have no merit.
ReplyDeleteConcerning No. (1):
The historical record shows that the Founders and Framers did not adopt the English common law on the national level. Rather, the English common law only continued to have application and effect in the states to whatever degree it was adopted and not abrogated by state statutes and new court decisions. As far as what law the Founders and Framers did adopt on the national level, that law was the Constitution, treaties, Acts of Congress, and the law of nations. The English common law did not make the list.
Concerning No. (2):
“Natural born Citizen” is not an English common law term. The word “citizen” has no origins in English society, neither in its politics nor in its language.
First, it did not exist in the English political society. The English political society called its people “subjects,” who through the feudal concept of the divine right of kings were beholden to the king for life. These “subjects” did not have the unalienable natural right to expatriate from the perpetual allegiance that they owed to the King from the moment of being born within his dominion, regardless of whether that birth was through design, accident, or consent of the English political society.
Second, the clause did not exist in the language of the English common law. The language of the English common law used “natural born subject,” not “natural born Citizen.” “Natural born Citizen” is a word of art, an idiom, which has its origins in natural law and the law of nations. The law of nations defines the clause as a child born in the country to citizen parents. See Emer de Vattel, The Law of Nations, Sec. 212 (London 1797) (1st ed. Neuchatel 1758). While Vattel was initially translated from the French to the English to say “indigenes” rather than “natural-born citizen,” ( see pre-1797 English translations of The Law of Nations and The Venus, 12 U.S. (8 Cranch) 253, 289(1814), wherein Chief Justice John Marshall, concurring and dissenting for other reasons, given the then-existing English translations of Vattel, understandably cited and quoted Vattel thus: “The natives or indigenes are those born in the country of parents who are citizens”), the anonymous English translator of the 1797 English edition of The Law of Nations replaced “natives or indigenes” with “natives or natural-born citizens,” as did all other subsequent U.S. Supreme Court decisions such as Dred Scott v. Sandford, 60 U.S. 393 (1857) (Daniels, J., concurring); Minor v. Happersett, 88 U.S. 162, 167-68(1875) U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898).
As we can see, all these U.S. Supreme Court decisions said that a “natural-born citizen” is a child born in the country to citizen parents and they all expressly or implicitly cited Vattel for that definition. So clearly, the international and U.S. judicial national consensus has for centuries been that Vattel in English said “natural-born citizen.” The Founders and Framers reading his then-existing editions of his 1758 French treatise in both French and English (Vattel’s 1758 French edition was followed with various other French editions and was first translated into English in 1759, followed with various other English translations) came to the same conclusion and so used the clause “natural born Citizen” and Vattel's meaning of that clause in Article II, Section 1, Clause 5.
Mario,
ReplyDeleteI am sure you are aware of Charles Kerchner's new suit against Obama to keep him off the PA Ballot. Charles Kerchner has retained a lawyer for this suit and a hearing is set for Thursday, March 1, 2012. I don't speak for Charles but as an avid supporter of both you and Charles, I encourage you to contact Charles to see what help you can provide at the hearing. Perhaps you can work with Charles's new lawyer and Charles then he will have double counsel to assist him. You live in New Jersey. In any event, a trip to PA on Thursday would only be a couple of hours drive. Regardless, of what role you may or may not play in Charles's suit, I encourage you to attend the hearing. As a lawyer, you are probably the most well versed lawyer on the NBC issue to date. Charles's lawyer appears to new in this issue. While I don't doubt her ability to represent Charles, your legal expertise and scholarly understanding of NBC would be an invaluable tool for Charles's suit. I wish you good luck Mario.
Why is this so complicated? Why all the legal hair splitting and logic chopping? Isn't it pretty obvious what the Founders were trying to do and what they meant?
ReplyDeleteWhether their restriction is too old and quaint, or whether it should be changed, are different issues and perhaps a reasonable point of debate.
I don't see how the meaning and intent of the words in the constitution are even remotely debatable. And this is so strong and so obvious that I don't see how any legal precedent, dicta, or ruling could overrule that.
This is worse than arguing "what the meaning of 'is' is".
Bravo, Mr. Apuzzo!
ReplyDeletePlease have someone record the audio of the hearing, it is so much better than transcripts.
break a leg.
Dr. Conspiracy is using Alexander Hamilton's proposal for presidential qualification to argue that just being born a citizen is sufficient to be a "natural born Citizen." Here is Hamilton's proposed language:
ReplyDelete"§. I. No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States."
The problem that Dr. Consiracy has is that the Constitution says "natural born Citizen," not "born a citizen."
So, I guess for Dr. Conspiracy it is real easy to just amend the constitution to suit one's political wishes.
February 28, 2012 7:55 AM
Yes, Mario Doc is a master manipulator on words. Thanks for helping out Charles Kerchner in his case. You are good man. I wish the best of luck on Thursday. Just remember - Most likely Thursday in the Hearing, you will have to deal with 2 fundamental challenges that I can see. First, they will try to dismiss the case stating that don't have some type of standing. Since this is ballot state challenge, it should be easier to establish standing. Next, be prepared for ANKENY if you get to the NBC issue. Be ready to destroy ANKENY and then argue you side of the argument. Good Luck Mario.
ReplyDeleteMario,
ReplyDeleteI saw your submitted brief. http://www.scribd.com/doc/83104811/Kerchner-Laudenslager-v-Obama-Ballot-Challenge-Brief-on-Behalf-of-Objectors-Filed-28Feb2012
That's a hell of a brief! Be beware of ANKENY. You know it is going to be mentioned in the hearing.
The next challenge is getting the hearing to proceed and not having it dismissed. It appears Obama is fighting back but his motions have been denied.
Charles is in great and wonderful hands to have dual counsel for this hearing.
If only you get the services and legal talents of Dr. Herb Titus. Dr. Herb Titus is one of the country's top constitutional scholars and attorneys. His credentials are impeccable. He supports the correct definition of NBC. If only he could testify as an expert witness at the Kerchner Hearing.
ReplyDeleteCarlyle said:
ReplyDelete"I don't see how the meaning and intent of the words in the constitution are even remotely debatable."
It is because the liberals have established through usage - and therefore precedent - that there are purportedly two legitimately competing ways to look at the Constitution (or law in general), ie, from a 'broad construction' or 'strict construction' sense; or 'original intent' versus 'contemporary standards'. And those chickens are now coming home to roost. Even to undercutting the very evident meaning of the term NBC at the time of its inclusion in the Constitution. Which should be considered as a contract - wherein words have very clear meanings; or at least are supposed to - but isn't.
All of which is not meant to distract from this extremely important point. When the putative president used the term 'native born' during the election period to refer to himself, thus trying to mislead the American public as to the law, he committed an impeachable offense; showed his true colors: that he was not to be trusted.
The avenues of recourse now? The ballot challenges, with claimants having standing in the eyes of the law, is a good one; and to overwhelm the system with them. But an equally good one would be to have leaders in this movement organize fundraising for ads in the mainstream papers, bringing the arguments to a wider audience than just the choir. And after that, if still need be: a march on Washington of the People, Assembled, booting - nonviolently - the Usurper from the office, and dissolving Congress for being an accessory to the fact.
Details to follow, if it needs to come to this. First things first. Giving the power structure every opportunity to respond in a mea culpa way. Before The People, as a last resort, in an act of civil disobedience, taking their country back from its hijackers.
For the American system of government IS government of, by, and for The People. But only for as long as The People keep awake and alert to that fact, and their responsibility in and to its endurance.
Let's not let the vision down, in our generation. The vision, for the world, of people living their lives by self-governance. Not Church or Royalty or Oligarchy lording it over them. But free-willed Citizens, showing the way into a better day, in life on Earth.
Our mission, to perform. The incarnated souls here, now. Rising to the occasion. And boy, is it ever one of those.
Further proof of the Framers' natural law frame of reference
ReplyDeleteMadison, in the House of Representatives, June 8, 1789, speaking of proposed Amendments that "may be called a bill of rights"
In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.
Annals of Congress, 1st Cong., 1st sess., 454
http://memory.loc.gov/ammem/amlaw/lwaclink.html
An interesting video "The American People WAKE UP after Congressional Records prove Obama NOT to be a US" at http://www.youtube.com/watch?feature=player_embedded&v=9dbtOoX3exk
ReplyDeleteJohn Woodman, the "master debater" and champion for the pro liar-usurper side, runs and hides when asked some simple questions.
ReplyDeleteHere is what John was asked.....
".....the WKA court ran with the notion that “citizen” and “subject” were to considered analogous, and therefore, based on Lord Coke’s version of English common law, a child born in England to a father who is not a “subject” [NOUN], can not be a “natural born subject”.
Similarly, and based on the very same WKA court’s notion of “citizen” being analogous to “subject”, then it follows that a child born in US to a father who is not a “citizen”, can not be a “natural born Citizen”.
If the Minor court was referring to the English common law and if the English common law held that native birth was sufficient to make a “natural born”, then .....
.....how did the Minor court come to the conclusion that a child born in the US, to citizen parents, was undoubtedly a “natural born citizen”, but it was doubtful that a child born in the US, to alien parents, was even a citizen, let alone a NBC?"
http://rcradioblog.wordpress.com/2012/02/07/mario-time-to-putz-up-or-shut-up/#comment-937
Thanks Stan - I'm sure you perceived my question was at least partly rhetorical - and definitely meant to promote comment. I get so tired of people trying to pound square pegs into round holes. Trying to make an answer conform to a pre-conditioned result.
ReplyDelete"Is there anyway we can parse the words, twist the logic, or scan through historical documents to justify the result we want."
I have found that the best way to get Correct Answers is to remove all emotional content or desired outcomes, and stand back, and rise above, and take a considered view of the situation.
In this case, you need do no more than consider the English language, common notions of law and justice in the 18th century, and the PURPOSE of this RESTRICTION. It is positively silly to seek to water down this restriction or take it only half way.
200+ years on perhaps it is time to revisit and even revise this constitutional language, but to run roughshod over it is disingenuous and frankly underhanded.
Time to lift the media blackout on this fraud Obama.
ReplyDeleteSheriff Joe Arpaio's shows the evidence and meets the those in media who show interest.
Pt 1
http://www.youtube.com/watch?feature=player_embedded&v=QOqkFar5QMI
Pt 2
http://www.youtube.com/watch?v=blh0lmX9jo4&feature=youtu.be
Pt 3
http://www.youtube.com/watch?v=pu3XpWh4HRM&feature=youtu.be
Pt 4
http://www.youtube.com/watch?v=C-5_AWIYJUs&feature=youtu.be
Pt 5
http://www.youtube.com/watch?v=diYEOBERyZg&feature=youtu.be
Pt 6
http://www.youtube.com/watch?v=Q_EGEIqY6S0&feature=youtu.be
http://nation.foxnews.com/sheriff-joe-arpaio/2012/03/01/sheriff-joe-arpaio-obama-birth-certificate-forgery
Hello Mr. Apuzzo,
ReplyDeleteIt is official: Sheriff Arpaio has proven by facts that Obama's long form birth certificate is nothing less than a forgery. Same for Obama's Selective Service Registration Card!!
What is hard to believe that mainstream media is nearly silent concerning Sheriff Arpaio's proofs. Articles appear mainly on pro-Republican sites.
Despite the proofs provided by Sheriff Arpaio, we are not yet better off with any prospect that a full discovery will be attempted legally!!!
It is quite disgusting and extremely annoying to see how Justice is one-sided in this country and favors the Democrats systematically and unfairly in the USA!
When on earth JUSTICE will be fully served by full discovery not only on Obama's long form birth certificate but on all Obama's past documents that must be fully scrutinized? WHEN?!!!
Check the video links of the proofs provided by Sheriff Arpaio at "Arpaio: Congressional probe good next step" at http://www.wnd.com/2012/03/arpaio-says-congressional-investigation-good-next-step/
It is very, very clear that Obama is not a "natural born citizen". With recent revelations both by the Arizona sheriff's discoveries but also others, it seems unlikely that Obama is even a United States citizen. However, he does have very powerful allies in the corporate world including the media. And I have noticed that rebuttals both to what scholarly attorneys and historians have turned up as well as to research on his birth documents, etc. are almost always sarcastic ad hominem in nature. Sometimes they are so wild and irrational and so filled with invective that one can not even follow what is being said. Given the amount of money spent in this country for education this is a sad outcome. How many students burdened now by huge university debt can not even manage to grasp these very short and excellent presentations provided by Puzo. They should give Kant's philosophy a try!
ReplyDeleteBut all this is a barometer of America's civil society which is in a bad way at this time. Obama seems to be proving why the Founders had the qualification of natural born citizen. Unfortunately even much of the Internet alternative media is filled with irrational responses to the recent revelations of the Sheriff Arpaio. And of course we see those responses here to Puzo. This tells us that people are getting the message and that it is frightening them. This is a real attack on what they believe is liberalism.
All:
ReplyDeleteBelow is a link to a post conference interview of Sheriff Joe Arpaio of AZ and the full length video report of the investigation in high quality video and sound is found at this link in my latest blog post.
http://cdrkerchner.wordpress.com/2012/03/02/sheriff-joe-discusses-his-cold-case-posse-report-and-the-press-conference-he-gave-in-az/
I also wish to state my sincere thanks and appreciation for Atty Apuzzo's help in the hearing in PA yesterday, all provided pro bono. While the court turned a deaf ear once again, we again got into the legal record book of history the complicity of the Obama campaign and the court system in PA in the cover up of Obama's citizenship and identity fraud. The truth and constitution one day will expose these to all. Again thank you Atty Apuzzo. You are a true patriot.
CDR Charles Kerchner (Ret)
Lead Objector/Plaintiff
Kerchner & Laudenslager v Obama
Commonwealth Court of PA
www.ProtectOurLiberty.org
Charles,
ReplyDeleteYou may not have to give up yet. Obama still has to be nominated, so you might actually have standing to keep him off the General Election Ballot. You will have to investigate. And as much as it might pain you, Phil Berg might also be able to help since he is a registered Democrat in PA and might have better standing to keep him off the ballot. In light of Sheriff Arpaio's Report, you might not have to argue the NBC argument since his birth certificate is clearly a forgery and Phil Berg certainly supports that.
James,
ReplyDeleteThe court did not dismiss for lack of standing. It dismissed for what it said was lack of jurisdiction.
I see Mario. You should investigate how you might be able to get past jurisdictional barrier for a general election compliant if possible.
ReplyDeleteMichaelIsGreat says:
ReplyDelete(Part 1)
Hello Mr. Apuzzo,
I would like to share with you interesting comments made by Attorney Van Irion on the challenges of getting fair and honest justice when you are at the "wrong side of a case"!!
----------------------
Attorney Van Irion realised, what I’ve been saying for 4 years: we live in a fascist banana republic [editor’s deletion]. (www.orlytaitzesq.com)
—From “Attorney Van Irion has realised | Dr. Orly Taitz, Esquire” at http://www.orlytaitzesq.com/?p=32580
Attorney Van Irion has realised
Posted on | March 2, 2012 | No Comments
Attorney Van Irion realised, what I’ve been saying for 4 years: we live in a fascist banana republic [editor’s deletion].
Terence Brennan
aequitas@mail.triconia.com
68.243.158.177
Submitted on 2012/03/02 at 6:03pm
Orly,
You may not want to post this — but I leave that to your choice. Here goes.
The following is an email from Attorney Van Irion. He is now tasting [editor’s deletion] that you have been dealing with for years. He is stunned by the lack of [editor’s delition] in the courts, who should be the nation’s final defenders of justice.
—-Attorney Van Irion’s experience in Georgia—
“So much has happened recently demonstrating the lack of [editor’s deletion] in our judicial system that I’m now forced to review these incidents in bullet point format:
“The President’s attorney dishonors the Georgia Administrative Court by sending a letter directly to the Secretary of State requesting the executive branch of Georgia to take a lawsuit away from the judicial branch.
“The President and his attorney dishonor the Georgia Administrative court again by violating that court’s order to appear.
“The Georgia Administrative Court refuses to forward Liberty Legal Foundation’s motion for contempt to the Georgia Supreme Court, despite Georgia law leaving the Administrative court no discretion on this matter.
“The Georgia Administrative court refuses to even respond to correspondence regarding our motion for contempt.
“The Georgia Superior Court fails to comment on the motion for contempt or require the Administrative court to forward records, as required by law.
“The Georgia Superior Court Clerk initially refuses to file LLF’s appeal document, then backs down after being instructed on the law.
“The Georgia Superior Court Clerk refuses to file LLF’s emergency motion for preliminary injunction because $1 was not included with our filing. Then, when LLF hand delivers $1 to the clerk, the clerk sits on the motion for 10 days and mails it back to LLF claiming that the correct staffer didn’t get the $1. Our plaintiff gave the case number, name of the motion, and name of the staffer, who was literally pointed at in the room. Yet the clerk’s office still claims that that staffer didn’t get the $1. The motion had to be completely re-filed and was then delayed another two days before finally being filed.
“The Chief Judge of the Superior Court was made aware of all of the incidents occurring in her Clerk’s office, yet she did nothing to correct the situation.
“The President’s motion to dismiss was filed on his first attempt. After three days the Court notified LLF that the Court had shortened the time to file an opposition to that motion, giving us less than a day to file.
“Late that same day the Chief Judge signs an order denying LLF’s motion to have Van Irion admitted as a visiting attorney in this case, preventing LLF from filing the opposition that the Court had ordered us to file 6 hours earlier. (Note that I’ve been admitted as a visiting attorney in 5 states and at every level of court, both state and federal. I’ve never been denied admission before. Further, my local attorney sponsor was a sitting member of the state’s legislature, making this denial even more shocking.) Even more outrageous is the timing of the denial, made just hours before a Court-set deadline, after the Court sat on our motion for more than two weeks.
(See second posting: Part 2)
March 3, 2012 4:24 AM
MichaelIsGreat has left a new comment:
ReplyDelete(Part 2)
Hello Mr. Apuzzo,
I would like to share with you interesting comments made by Attorney Van Irion on the challenges of getting fair and honest justice when you are at the "wrong side of a case"!!
...
...
(Part 2)
“The Georgia Secretary of State has, to date, refused to forward the record of the case to the Superior Court, despite Georgia law absolutely requiring this action and requiring that it be done as soon as possible.
“The Superior Court does nothing to require the Secretary of State to forward the record of the case.
“Only 90 minutes after our plaintiff files an opposition himself (because LLF was denied the ability to file it for him), the Chief Judge issues a three-page opinion granting Obama’s motion to dismiss our appeal. It seems obvious that the Court’s opinion was written before they asked us to file an opposition. Also, the dismissal was granted while the Court had not even received the record of the hearing held by the lower court. In other words, it ruled without even reviewing the record or reading our plaintiff’s opposition.
“Our system of government is based upon an assumption that the people placed in high office are honorable. This is an absolute requirement for the survival of our nation. The Founding Fathers understood that when dishonorable people begin to take high office, the system of government they set into motion would begin to fail. Unfortunately America’s judicial system is proving this principle.
“These are just the incidents associated with our Georgia case and we are not discussing the substance of the breathtakingly absurd rulings from any of these courts. Without needing to discuss judicial rulings, the incidents cited here demonstrate [editor’s deletion ] of our courts. This bias effectively prevents those on one side of an issue to have basic access to the courts. In other words, the courts are now barring specific viewpoints from entering the front doors of the court. When we do get through we are [editor’s deletion] by means of the timing of orders and one-sided enforcement of procedural requirements.
“Georgia is an example of what is happening across our country. Laws are being blatantly ignored by those in high office, while other laws are being used to punish their political opponents. This type of [editor’s deletion] reflects the practices historically found in third world nations, dictatorships, and communist tyrannies. Freedom cannot survive where such practices go unpunished.
“Yet it is practically impossible to punish individuals holding high office. This is why such individuals must have honor, allowing them to resist their own selfish temptations. Unfortunately America’s high offices are now populated by [editor’s deletion]. Our Founding Fathers are being proven correct, once again.
“Our opponents are trying to frustrate and exhaust us to the point that we will give up. They don’t want their [editor’s deletion] to be seen in the light of day. [editor’s deletion]. This tells us that we are having an effect. Even when we don’t win a legal battle, our efforts shine the light of truth on their [editor’s deletion]. That [editor’s deletion] is responding by lashing out at us.”
----------------------
March 3, 2012 4:25 AM
Federal judge files complaint over his own e-mail message, accessed at
ReplyDeletehttp://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202544149076
The joke sent by the judge was inappropriate. However, what is much more upsetting is the hypocrisy of those requesting his resignation or removal.
ReplyDeleteThey are fully aware that Mr. Obama is not eligible to be President (insert a voluminous list of other offenses here), yet they utter nary a word.
What's worse: a poor sense of humor or treason against the Constitution and the People these elected officials are sworn to protect and represent?
The political opportunists rushing to the store to buy rope need to be sure to get a little extra for themselves.
I strongly encourage every birther who buys this book to leave a positive review. The Obots are already starting to destroy this book.
ReplyDeletehttp://www.amazon.com/Question-Eligibility-Enforcement-Investigation-ebook/dp/B007FWO19W/ref=sr_1_1?ie=UTF8&qid=1330874122&sr=8-1