The Vermont Court Errs in Dismissing Presidential Ballot Challenge H.
Brooke Paige v. Barack Obama
By Mario Apuzzo, Esq.
November 17, 2012
Judge Robert R. Bent, Presiding Judge of the Vermont Superior Court, on November 14, 2012 dismissed the candidate Barack Obama Vermont ballot challenge of Paige v. Obama, Docket No. 611-8-12. He ruled that H. Brooke Paige does not have standing to bring the action, the court does not have jurisdiction, and his argument on the meaning of a “natural born Citizen” has no merit. The decision can be read at http://www.scribd.com/doc/113533939/VT-Paige-v-Obama-Et-Al-DeCISION-Vt-Super-Ct-Nov-2012 .
Mr. Paige filed his ballot challenge against both candidate Barack Obama and the Vermont Secretary of State, arguing that Obama should not be allowed on any presidential election ballot in Vermont because, being born to a U.S. “citizen” mother, but not also to a U.S. “citizen” father, he is not an Article II “natural born Citizen.”
I.
As to standing, Judge Bent ruled that Vermont has adopted the federal rule on standing which requires a litigant to satisfy both the requirements of Article III and its related prudential component. He explained that standing requires a litigant to show injury in fact, causation, and redressability. He concluded that Paige has not shown injury in fact. But Barack Obama has again won the general election. He now stands to win the Electoral College vote. Paige has adequately shown that his life, liberty, and property can be particularly injured by having to live under the authority and power of a person who may occupy the Office of President and Commander in Chief of the Military who may not be constitutionally eligible to be there in the first place for not being a “natural born Citizen.” Mr. Paige has adequately shown that the Founders and Framers required future presidents to be “natural born Citizens” to protect and preserve the nation. Hence, the clause is a national security measure designed to assure the safety of the nation. Needless to say, the “natural born Citizen” clause is intended to protect and preserve Mr. Paige and to provide for his safety and well-being. That the clause protects all Americans is no reason to deny Mr. Paige its protection in a legal action in which he seeks to have the courts enforce the clause.
Judge Bent did recognize that Vermont also has two statutes, 17 V.S.A. Sec. 2603(a)(3), which allows any legal voter to challenge an election after it occurs. He conceded that on its face, the statute does not limit itself to any particular election issue as the subject of an election contest. He also cited Sec. 2617 which provides: “In all cases for which no other provision has been made, the superior court shall have general jurisdiction to hear and determine matters relating to elections and to fashion appropriate relief.” But he distinguished these statutes and concluded that they only apply to activities occurring during the conduct of the election itself which could change the result of the election and not to presidential eligibility. But the statutes say no such thing and Judge Bent has written words into these statutes which the Vermont legislature did not write. Additionally, whether a candidate is eligible for the office he or he seeks does affect the conduct of the election and could surely change the result of the election. What could be more fundamental to the conduct of an election for any given office than whether a candidate is constitutionally eligible for the office he or she seeks? So, the legislature has specifically passed these two statutes which allow a voter such as Mr. Paige to challenge in the Vermont Superior Court a presidential candidate’s eligibility to be placed on the Vermont presidential election ballot and election to that office through the general election and the Electoral College.
Judge Bent also concluded that these Vermont statutes are no reason for the court to find that Paige has satisfied the requirement of prudential standing, which requires that a plaintiff’s claim is included in “the zone of interest protected by the law invoked.” He found that these statutes do not expressly allow a challenge by Mr. Paige to presidential eligibility and that to allow such a challenge in state court would produce “wholesale chaos and lingering uncertainty to presidential elections.” But such speculation is no reason to deny jurisdiction and to deny Mr. Paige a judicial forum for him to protect his constitutional rights. Our nation’s courts are more than capable to handle and coordinate complex legal matters. That the issue involves presidential eligibility is hardly a reason to conclude that our state courts cannot handle the matter. Moreover, given that the contested issue involves the presidential election, any state court decision on presidential eligibility would be fast tracked to the U.S. Supreme Court which would decide the matter for all the states. Hence, while the Vermont legislature has decided to confer standing upon Mr. Paige to bring his challenge to Obama in the Vermont state courts, Judge Bent has denied him that right.
II.
Judge Bent also concluded that the Vermont state courts or any state courts have no jurisdiction over the question of whether a presidential candidate is constitutionally eligible because for a state court to get involved in the matter could potentially create national chaos. But such speculation is no reason to deny jurisdiction and to deny Mr. Paige a judicial forum for him to protect his constitutional rights. As we saw above, our nation’s courts are more than capable to handle and coordinate complex legal matters and any state challenge would be fast tracked to the U.S. Supreme Court which would decide the matter for all the states. Finally, Judge Bent was not sure whether Congress in joint session under 3 U.S.C. Sec. 15 has the authority to address the issue of presidential eligibility which would make the matter a nonjusticiable political question. Hence, without any say from the courts (both state and federal given the standing rule and the requirements of jurisdiction that he imposes) or Congress, Judge Bent does not allow for any means for resolving under the rule of law any question of presidential eligibility in our constitutional republic.
III.
Standing and jurisdiction do not address the merits of a case. But Judge Bent also concluded that Paige’s argument as to what is an Article II “natural born Citizen” has no merit. Judge Bent erred just based on the text of the “natural born Citizen” clause. “It cannot be presumed that any clause in the constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it….” Marbury v. Madison. 5 U.S. 137, 174 (1803). Hence, a basic rule of constitutional construction is that every word in the constitution must be given meaning. The Constitution says "natural born Citizen," not "born Citizen." Judge Bent is therefore wrong simply on the constitutional text when he says that anybody who is born a citizen is a "natural born Citizen." There must be a reason the Framers added the word “natural” to “born Citizen.” The reason is that the clause is a word of art, an idiom, a unitary clause, which has a very specific fixed meaning. By adopting such a definition, Judge Bent has given the word “natural” no meaning and has confounded the proper interpretation of the clause by focusing on the result of being a “natural born Citizen” (born a citizen) rather than focusing on the word of art itself which has a very specific meaning. There is nothing about the clause which suggests that the word “natural” is surplusage and intended to have no effect. Hence, his interpretation “is inadmissible” and must be rejected.
Historical sources, case law of the U.S Supreme Court, and acts of Congress also demonstrate that Judge Bent has erred. Vattel at § 212. Citizens and natives, defined the “citizens” and the “natural-born citizens” thus:
“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758). While recognizing that Vattel's The Law of Nations "was a work of significant value to the founding fathers," Judge Bent refers to the phrase, “The natives, or natural-born citizens, are those born in the country, of parents who are citizens” as a phrase used only by Vattel. He said that simply because Vattel used the phrase, the phrase does not have any “constitutional significance.” But Paige provided to the court numerous historical and legal sources that demonstrated that after July 4, 1776, our nation adopted the law of nations model of citizenship and not that of the English common law. Judge Bent avoided any discussion of the naturalization acts of 1790, 1795, 1802, and 1855 which were all jus sanguinis (citizenship derived from parents) based and therefore followed the Vattel model. He also does not address cases like Minor v. Happersett, 88 U.S. 162, 167-68 (1875), where the unanimous U.S. Supreme Court adopted that phrase and jus sanguinis and held that the "natural born citizens," “[a]t common law, with the nomenclature of which the framers of the Constitution were familiar” were “all children, born in a country, of parents who were its citizens” and that at “common law,” “there have been doubts” whether we ever adopted jus soli (citizenship derived from the place of birth) citizenship. Judge Bent wrote as though Vattel is the only person ever to use the phrase when we know that the phrase was also adopted by the U.S. Supreme Court justices in The Venus, 12 U.S. 8 Cranch 253, 289 (1814) (C.J. Marshall concurring), Dred Scott v. Sandford, 60 US 393, 405 (1857) (J. Daniels concurring), and the unanimous U.S. Supreme Court in Minor, not to mention Inglis v. Trustees of Sailor’s Snug Harbor, 28 U. S. 99 (1830) and Shanks v. Dupont, 28 U.S. 242, 245 (1830) which adopted the same rule of partus sequitur patrem, i.e., children follow the condition of their parents which is jus sanguinis citizenship and not jus soli citizenship. See also Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) and United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (cite and quote Minor’s Vattelian/American common law definition of a “natural-born citizen”).
Judge Bent said that Vattel’s use of “parents” in the plural does not have any "particular significance." Judge Bent said that “[t]hus far, no judicial decisions have adopted such logic in connection with this or any related issues.” But first, Vattel is not the only person to use the word “parents” in the plural, for the above cited U.S. Supreme Court Justices and case law also did. So Judge Bent actually told us that there is no “particular significance” to the U.S. Supreme Court’s use of the term “parents.” Second, Judge Bent failed to address the fact that at the time of the founding and until 1922 when Congress passed the Cable Act, a wife’s citizenship merged into that of the husband. Hence, “parents,” meaning both husband and wife, always had the same citizenship. Third, “parents” in the plural is nothing new to our citizenship and naturalization laws, for there are so many such statutes in our history that required both parents to be citizens in order for the child to gain any naturalization or immigration benefits. Fourth, Judge Bent accepted that because other cases were fortuitously decided before his, he is bound by those cases and relinquished his own independent thinking on the matter.
Judge Bent's reliance on the Fourteenth Amendment and U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) to expand the group of "natural born Citizens" to include children born in the United States to alien parents is also misplaced. The Framers in Article II clearly distinguished between a "natural born Citizen" and a "Citizen of the United States." In the future, being a “Citizen of the United States” was not sufficient, for only a "natural born Citizen" could be President. The Fourteenth Amendment provides in relevant part:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." We can see from the plain text of the Fourteenth Amendment that it only addresses a "citizen of the United States," not a "natural born Citizen."
Wong Kim Ark explained:
“The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Rep. 1, 18b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent Com. 39, 42.”
Wong Kim Ark, at 682. We can see that the amendment’s purpose was to exclude from basic membership in the United States, which it calls “citizen of the United States” and not “natural born Citizen,” certain children, i.e., those of American Indians, alien enemies, and diplomats. It was not designed to tell us who were included as Article II “natural born Citizens.” We have seen from Minor, as confirmed by Wong Kim Ark, that American common law did that.
Wong Kim Ark confirmed Minor’s American common law definition of a “natural-born citizen" not only when it cited and quoted Minor, but also when it recognized that Wong was a Fourteenth Amendment “citizen of the United States,” not an Article II “natural born Citizen.” Justice Gray told us twice of this distinction. The first time he said: “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.' Page 22, note. This paper, without Mr. Binney's name, and with the note in a less complete form, and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Am. Law Reg. 193, 203, 204. ” Wong Kim Ark, at 665-66. Later in his opinion, Justice Gray, in speaking about a child born in the United States to alien parents again said that an alien’s “child, as said by Mr. Binney in his essay before quoted, '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.'” Id. at 694. It is critical that when he mentioned it for the second time, his sentence followed the Court’s conclusion which he based on how the colonial English common law held aliens in amity to have sufficient allegiance to the King to make his children born in the King’s dominion “natural born subjects,” that Wong was born “subject to the jurisdiction” of the United States. So twice, Justice Gray told us of the distinction between a child born in the country to aliens and a child born in the country to “citizen” parents. He explained that both are “citizens,” but only the latter is a “natural-born citizen.”
Hence, Wong Kim Ark interpreted the meaning of the Fourteenth Amendment’s “citizen of the United States,” not Article II’s “natural born Citizen.” As Minor instructs, the Founders and Framers had only one definition of a "natural born Citizen." It held that the "natural-born citizens," “[a]t common law, with the nomenclature of which the framers of the Constitution were familiar” were “all children, born in a country, of parents who were its citizens.” Minor v. Happersett, 88 U.S. 162, 167-68 (1875); U.S. v. Wong Kim Ark, 169 U.S. 649, 679-80 (1898) (citing and quoting Minor). It is this American common law (not English common law) definition which the Founders and Framers adopted at the time of the adoption of the Constitution that controls, not what the U.S. Supreme Court said in Wong Kim Ark about a child born in the United States to domiciled and resident alien parents being a "citizen of the United States" under the Fourteenth Amendment. In fact, Wong Kim Ark analyzed whether the law of nations, which is the basis of our American common law definition of a “natural born Citizen,” had any controlling effect on defining citizenship in our nation at the time that the Fourteenth Amendment was passed, not when the Constitution was passed. Hence, Wong Kim Ark was not concerned with the Founders’ and Framers’ view of what was a “natural born Citizen” and Article II, but rather with the Fourteenth Amendment. It is therefore error for Judge Bent to use the Wong Kim Ark decision to expand the class of people who can be held to be “natural born Citizens.”
In his cursory mention of Minor in Footnote 1, Judge Bent also conflated and confounded Minor’s use of the word “citizen” with “natural born Citizen.” He pointed out that Minor said that “there have been doubts” whether “children born within the jurisdiction without reference to the citizenship of their parents” were “citizens.” He added that Wong Kim Ark answered that question which Minor left unanswered. But then he also concluded that Wong Kim Ark defined who was a “natural born Citizen.” But if Wong Kim Ark answered the question left open by Minor, it did not define what a “natural born Citizen” was, but rather only what a “citizen” was. A careful reading of Wong Kim Ark shows that it recognized that Minor left open the question of who was a “citizen of the United States” under the Fourteenth Amendment, not who was an Article II “natural born Citizen.” For example, Wong Kim Ark said:
“That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: ‘Allegiance and protection are, in this connection’ (that is, in relation to citizenship),
‘reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . 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 [p680] parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.’
Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship. The only adjudication that has been made by this court upon the meaning of the clause, ‘and subject to the jurisdiction thereof,’ in the leading provision of the Fourteenth Amendment is Elk v. Wilkins, 112 U.S. 94.” Wong Kim Ark, at 679-80. Here, we can see that Wong Kim Ark focused only on the Fourteenth Amendment, its “subject to the jurisdiction” clause, and its definition of a “citizen of the United States” when discussing The Slaughterhouse Cases, Minor, and Elk. It was not concerned with Article II and its meaning of a “natural born Citizen.”
Judge Bent stated that Wong Kim Ark concluded that the original framers obtained their model of citizenship from the English common law. While he told us by citing and quoting Wong Kim Ark what the English common law in England was on subjecthood, he did not present any evidence that the Founders and Framers adopted that English common law to define the new U.S. national citizenship. He concluded without citing to any evidence that “there is no apparent distinction between” a “natural born citizen” and a “natural-born subject.” He failed to discern that Wong Kim Ark, faced with having to interpret and apply the Fourteenth Amendment to determine whether Wong was a “citizen of the United States,” needed to decide who was a “citizen” under that amendment, not who was a “natural born Citizen” under Article II, and that the Court used the English common law as an aid in doing that and not to define an Article II “natural born Citizen.” He also failed to address Minor which in specifically defining a “natural-born citizen,” used a model of citizenship that was based on the law of nations which became American national common law and not the English common law. In this connection, he also avoided any discussion of, among other historical sources provided by Mr. Paige, the naturalization acts of 1790, 1795, 1802, and 1855 which were all jus sanguinis based (law of nations and American common law) and not jus soli based (English common law). These statutes are highly relevant in determining what the Founders and Framers meant by the “natural born Citizen” clause, for the early acts were passed by many members of the First and Third Congress who were intimately involved in the drafting and passage of the Constitution.
Judge Bent stated that the decision of Ankeny v. Governor of Indiana, 916 N.E.2d 678 (Ind.Ct.App. 2009) is the “most comprehensive decision” on the meaning of a “natural born Citizen” and as such discusses the “the historical basis for the use of the phrase.” As we saw above, Ankeny's reliance on Wong Kim Ark to expand the group of "natural born Citizens" to include children born in the United States to alien parents is misplaced. Additionally, there is not one word in the Ankeny decision that addresses the purpose for which the Founders and Framers included the “natural born Citizen” clause in the Constitution as part of the requirements to be eligible to be President and Commander in Chief of the Military. There is not one word in the decision which looks to what the Founders and Framers intended the clause to mean when they included it in the Constitution. What is also amazing is that the Ankeny court hardly even knew who Emer de Vattel was despite the historical record amply demonstrating the immense influence that Vattel had on the founding generation and beyond and as we have seen above the U.S. Supreme Court adopting his definition of a “natural born Citizen.”
In discussing Ankeny, Judge Bent said that “‘natural born Citizen’ is not dependent on the nationality of the parents but reflects the status of a person born into citizenship instead of having citizenship subsequently bestowed. The distinction is eminently logical.” But upon close examination, this distinction is not logical at all. This argument is tantamount to arguing that any person who is a “citizen at birth” is a “natural born Citizen.” This is fallacious reasoning called the fallacy of affirming the consequent. We know from the definition of a “natural-born citizen” provided by Minor and other historical sources and U.S. Supreme Court case law cited, that satisfying the definition means that one is necessarily a “citizen” from the moment of birth. But being a citizen from the moment of birth is a necessary condition of being a “natural born Citizen.” It is not a sufficient condition, for according to Minor v. Happersett, the definition also contains the two requirements of being born in the country to “citizen” parents. Hence, just showing that one was “a citizen at birth” only satisfies part of the definition which by the very nature of the definition is necessary but not sufficient. Here is an example of this fallacy: If someone is smart, then someone is a professor. Someone is a professor. Therefore someone is smart. This argument is not valid. It demonstrates the fallacy of affirming the consequent. The first premise does not state that if one is a professor one is smart. Rather, it states that being a professor is the consequence of or follows from being smart. So, being a professor does not necessarily mean that one is smart. So likewise, the definition of a “natural born Citizen” does not state that being “a citizen at birth” makes one a “natural born Citizen.” Rather, being “a citizen at birth” is the consequent of or follows from being a “natural born Citizen.” Being “a citizen at birth” does not prove that one is a “natural born Citizen,” for the other two conditions of being a “natural born Citizen” must also be proven. There is also case law and statutes which prove that simply being “a citizen at birth” does not make one a “natural born Citizen.” Wong Kim Ark and Rogers v. Bellei, 401 U.S. 815(1971) said that children born out of the United States to “citizen” parents are citizens at birth, but are made such by naturalization statutes of Congress and not the common law or even the Fourteenth Amendment. We know from a plain reading of these statutes that they only define “citizens of the United States” and not “natural born Citizens.”
So as we can see, Judge Bent has erred for various reasons in dismissing Mr. Paige’s ballot challenge against presidential candidate Barack Obama and Vermont Secretary of State.
Mario Apuzzo, Esq.
November 17, 2012
http://puzo1.blogspot.com
####
Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved
Brooke Paige v. Barack Obama
By Mario Apuzzo, Esq.
November 17, 2012
Judge Robert R. Bent, Presiding Judge of the Vermont Superior Court, on November 14, 2012 dismissed the candidate Barack Obama Vermont ballot challenge of Paige v. Obama, Docket No. 611-8-12. He ruled that H. Brooke Paige does not have standing to bring the action, the court does not have jurisdiction, and his argument on the meaning of a “natural born Citizen” has no merit. The decision can be read at http://www.scribd.com/doc/113533939/VT-Paige-v-Obama-Et-Al-DeCISION-Vt-Super-Ct-Nov-2012 .
Mr. Paige filed his ballot challenge against both candidate Barack Obama and the Vermont Secretary of State, arguing that Obama should not be allowed on any presidential election ballot in Vermont because, being born to a U.S. “citizen” mother, but not also to a U.S. “citizen” father, he is not an Article II “natural born Citizen.”
I.
As to standing, Judge Bent ruled that Vermont has adopted the federal rule on standing which requires a litigant to satisfy both the requirements of Article III and its related prudential component. He explained that standing requires a litigant to show injury in fact, causation, and redressability. He concluded that Paige has not shown injury in fact. But Barack Obama has again won the general election. He now stands to win the Electoral College vote. Paige has adequately shown that his life, liberty, and property can be particularly injured by having to live under the authority and power of a person who may occupy the Office of President and Commander in Chief of the Military who may not be constitutionally eligible to be there in the first place for not being a “natural born Citizen.” Mr. Paige has adequately shown that the Founders and Framers required future presidents to be “natural born Citizens” to protect and preserve the nation. Hence, the clause is a national security measure designed to assure the safety of the nation. Needless to say, the “natural born Citizen” clause is intended to protect and preserve Mr. Paige and to provide for his safety and well-being. That the clause protects all Americans is no reason to deny Mr. Paige its protection in a legal action in which he seeks to have the courts enforce the clause.
Judge Bent did recognize that Vermont also has two statutes, 17 V.S.A. Sec. 2603(a)(3), which allows any legal voter to challenge an election after it occurs. He conceded that on its face, the statute does not limit itself to any particular election issue as the subject of an election contest. He also cited Sec. 2617 which provides: “In all cases for which no other provision has been made, the superior court shall have general jurisdiction to hear and determine matters relating to elections and to fashion appropriate relief.” But he distinguished these statutes and concluded that they only apply to activities occurring during the conduct of the election itself which could change the result of the election and not to presidential eligibility. But the statutes say no such thing and Judge Bent has written words into these statutes which the Vermont legislature did not write. Additionally, whether a candidate is eligible for the office he or he seeks does affect the conduct of the election and could surely change the result of the election. What could be more fundamental to the conduct of an election for any given office than whether a candidate is constitutionally eligible for the office he or she seeks? So, the legislature has specifically passed these two statutes which allow a voter such as Mr. Paige to challenge in the Vermont Superior Court a presidential candidate’s eligibility to be placed on the Vermont presidential election ballot and election to that office through the general election and the Electoral College.
Judge Bent also concluded that these Vermont statutes are no reason for the court to find that Paige has satisfied the requirement of prudential standing, which requires that a plaintiff’s claim is included in “the zone of interest protected by the law invoked.” He found that these statutes do not expressly allow a challenge by Mr. Paige to presidential eligibility and that to allow such a challenge in state court would produce “wholesale chaos and lingering uncertainty to presidential elections.” But such speculation is no reason to deny jurisdiction and to deny Mr. Paige a judicial forum for him to protect his constitutional rights. Our nation’s courts are more than capable to handle and coordinate complex legal matters. That the issue involves presidential eligibility is hardly a reason to conclude that our state courts cannot handle the matter. Moreover, given that the contested issue involves the presidential election, any state court decision on presidential eligibility would be fast tracked to the U.S. Supreme Court which would decide the matter for all the states. Hence, while the Vermont legislature has decided to confer standing upon Mr. Paige to bring his challenge to Obama in the Vermont state courts, Judge Bent has denied him that right.
II.
Judge Bent also concluded that the Vermont state courts or any state courts have no jurisdiction over the question of whether a presidential candidate is constitutionally eligible because for a state court to get involved in the matter could potentially create national chaos. But such speculation is no reason to deny jurisdiction and to deny Mr. Paige a judicial forum for him to protect his constitutional rights. As we saw above, our nation’s courts are more than capable to handle and coordinate complex legal matters and any state challenge would be fast tracked to the U.S. Supreme Court which would decide the matter for all the states. Finally, Judge Bent was not sure whether Congress in joint session under 3 U.S.C. Sec. 15 has the authority to address the issue of presidential eligibility which would make the matter a nonjusticiable political question. Hence, without any say from the courts (both state and federal given the standing rule and the requirements of jurisdiction that he imposes) or Congress, Judge Bent does not allow for any means for resolving under the rule of law any question of presidential eligibility in our constitutional republic.
III.
Standing and jurisdiction do not address the merits of a case. But Judge Bent also concluded that Paige’s argument as to what is an Article II “natural born Citizen” has no merit. Judge Bent erred just based on the text of the “natural born Citizen” clause. “It cannot be presumed that any clause in the constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it….” Marbury v. Madison. 5 U.S. 137, 174 (1803). Hence, a basic rule of constitutional construction is that every word in the constitution must be given meaning. The Constitution says "natural born Citizen," not "born Citizen." Judge Bent is therefore wrong simply on the constitutional text when he says that anybody who is born a citizen is a "natural born Citizen." There must be a reason the Framers added the word “natural” to “born Citizen.” The reason is that the clause is a word of art, an idiom, a unitary clause, which has a very specific fixed meaning. By adopting such a definition, Judge Bent has given the word “natural” no meaning and has confounded the proper interpretation of the clause by focusing on the result of being a “natural born Citizen” (born a citizen) rather than focusing on the word of art itself which has a very specific meaning. There is nothing about the clause which suggests that the word “natural” is surplusage and intended to have no effect. Hence, his interpretation “is inadmissible” and must be rejected.
Historical sources, case law of the U.S Supreme Court, and acts of Congress also demonstrate that Judge Bent has erred. Vattel at § 212. Citizens and natives, defined the “citizens” and the “natural-born citizens” thus:
“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758). While recognizing that Vattel's The Law of Nations "was a work of significant value to the founding fathers," Judge Bent refers to the phrase, “The natives, or natural-born citizens, are those born in the country, of parents who are citizens” as a phrase used only by Vattel. He said that simply because Vattel used the phrase, the phrase does not have any “constitutional significance.” But Paige provided to the court numerous historical and legal sources that demonstrated that after July 4, 1776, our nation adopted the law of nations model of citizenship and not that of the English common law. Judge Bent avoided any discussion of the naturalization acts of 1790, 1795, 1802, and 1855 which were all jus sanguinis (citizenship derived from parents) based and therefore followed the Vattel model. He also does not address cases like Minor v. Happersett, 88 U.S. 162, 167-68 (1875), where the unanimous U.S. Supreme Court adopted that phrase and jus sanguinis and held that the "natural born citizens," “[a]t common law, with the nomenclature of which the framers of the Constitution were familiar” were “all children, born in a country, of parents who were its citizens” and that at “common law,” “there have been doubts” whether we ever adopted jus soli (citizenship derived from the place of birth) citizenship. Judge Bent wrote as though Vattel is the only person ever to use the phrase when we know that the phrase was also adopted by the U.S. Supreme Court justices in The Venus, 12 U.S. 8 Cranch 253, 289 (1814) (C.J. Marshall concurring), Dred Scott v. Sandford, 60 US 393, 405 (1857) (J. Daniels concurring), and the unanimous U.S. Supreme Court in Minor, not to mention Inglis v. Trustees of Sailor’s Snug Harbor, 28 U. S. 99 (1830) and Shanks v. Dupont, 28 U.S. 242, 245 (1830) which adopted the same rule of partus sequitur patrem, i.e., children follow the condition of their parents which is jus sanguinis citizenship and not jus soli citizenship. See also Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) and United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (cite and quote Minor’s Vattelian/American common law definition of a “natural-born citizen”).
Judge Bent said that Vattel’s use of “parents” in the plural does not have any "particular significance." Judge Bent said that “[t]hus far, no judicial decisions have adopted such logic in connection with this or any related issues.” But first, Vattel is not the only person to use the word “parents” in the plural, for the above cited U.S. Supreme Court Justices and case law also did. So Judge Bent actually told us that there is no “particular significance” to the U.S. Supreme Court’s use of the term “parents.” Second, Judge Bent failed to address the fact that at the time of the founding and until 1922 when Congress passed the Cable Act, a wife’s citizenship merged into that of the husband. Hence, “parents,” meaning both husband and wife, always had the same citizenship. Third, “parents” in the plural is nothing new to our citizenship and naturalization laws, for there are so many such statutes in our history that required both parents to be citizens in order for the child to gain any naturalization or immigration benefits. Fourth, Judge Bent accepted that because other cases were fortuitously decided before his, he is bound by those cases and relinquished his own independent thinking on the matter.
Judge Bent's reliance on the Fourteenth Amendment and U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) to expand the group of "natural born Citizens" to include children born in the United States to alien parents is also misplaced. The Framers in Article II clearly distinguished between a "natural born Citizen" and a "Citizen of the United States." In the future, being a “Citizen of the United States” was not sufficient, for only a "natural born Citizen" could be President. The Fourteenth Amendment provides in relevant part:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." We can see from the plain text of the Fourteenth Amendment that it only addresses a "citizen of the United States," not a "natural born Citizen."
Wong Kim Ark explained:
“The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Rep. 1, 18b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent Com. 39, 42.”
Wong Kim Ark, at 682. We can see that the amendment’s purpose was to exclude from basic membership in the United States, which it calls “citizen of the United States” and not “natural born Citizen,” certain children, i.e., those of American Indians, alien enemies, and diplomats. It was not designed to tell us who were included as Article II “natural born Citizens.” We have seen from Minor, as confirmed by Wong Kim Ark, that American common law did that.
Wong Kim Ark confirmed Minor’s American common law definition of a “natural-born citizen" not only when it cited and quoted Minor, but also when it recognized that Wong was a Fourteenth Amendment “citizen of the United States,” not an Article II “natural born Citizen.” Justice Gray told us twice of this distinction. The first time he said: “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.' Page 22, note. This paper, without Mr. Binney's name, and with the note in a less complete form, and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Am. Law Reg. 193, 203, 204. ” Wong Kim Ark, at 665-66. Later in his opinion, Justice Gray, in speaking about a child born in the United States to alien parents again said that an alien’s “child, as said by Mr. Binney in his essay before quoted, '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.'” Id. at 694. It is critical that when he mentioned it for the second time, his sentence followed the Court’s conclusion which he based on how the colonial English common law held aliens in amity to have sufficient allegiance to the King to make his children born in the King’s dominion “natural born subjects,” that Wong was born “subject to the jurisdiction” of the United States. So twice, Justice Gray told us of the distinction between a child born in the country to aliens and a child born in the country to “citizen” parents. He explained that both are “citizens,” but only the latter is a “natural-born citizen.”
Hence, Wong Kim Ark interpreted the meaning of the Fourteenth Amendment’s “citizen of the United States,” not Article II’s “natural born Citizen.” As Minor instructs, the Founders and Framers had only one definition of a "natural born Citizen." It held that the "natural-born citizens," “[a]t common law, with the nomenclature of which the framers of the Constitution were familiar” were “all children, born in a country, of parents who were its citizens.” Minor v. Happersett, 88 U.S. 162, 167-68 (1875); U.S. v. Wong Kim Ark, 169 U.S. 649, 679-80 (1898) (citing and quoting Minor). It is this American common law (not English common law) definition which the Founders and Framers adopted at the time of the adoption of the Constitution that controls, not what the U.S. Supreme Court said in Wong Kim Ark about a child born in the United States to domiciled and resident alien parents being a "citizen of the United States" under the Fourteenth Amendment. In fact, Wong Kim Ark analyzed whether the law of nations, which is the basis of our American common law definition of a “natural born Citizen,” had any controlling effect on defining citizenship in our nation at the time that the Fourteenth Amendment was passed, not when the Constitution was passed. Hence, Wong Kim Ark was not concerned with the Founders’ and Framers’ view of what was a “natural born Citizen” and Article II, but rather with the Fourteenth Amendment. It is therefore error for Judge Bent to use the Wong Kim Ark decision to expand the class of people who can be held to be “natural born Citizens.”
In his cursory mention of Minor in Footnote 1, Judge Bent also conflated and confounded Minor’s use of the word “citizen” with “natural born Citizen.” He pointed out that Minor said that “there have been doubts” whether “children born within the jurisdiction without reference to the citizenship of their parents” were “citizens.” He added that Wong Kim Ark answered that question which Minor left unanswered. But then he also concluded that Wong Kim Ark defined who was a “natural born Citizen.” But if Wong Kim Ark answered the question left open by Minor, it did not define what a “natural born Citizen” was, but rather only what a “citizen” was. A careful reading of Wong Kim Ark shows that it recognized that Minor left open the question of who was a “citizen of the United States” under the Fourteenth Amendment, not who was an Article II “natural born Citizen.” For example, Wong Kim Ark said:
“That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: ‘Allegiance and protection are, in this connection’ (that is, in relation to citizenship),
‘reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . 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 [p680] parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.’
Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship. The only adjudication that has been made by this court upon the meaning of the clause, ‘and subject to the jurisdiction thereof,’ in the leading provision of the Fourteenth Amendment is Elk v. Wilkins, 112 U.S. 94.” Wong Kim Ark, at 679-80. Here, we can see that Wong Kim Ark focused only on the Fourteenth Amendment, its “subject to the jurisdiction” clause, and its definition of a “citizen of the United States” when discussing The Slaughterhouse Cases, Minor, and Elk. It was not concerned with Article II and its meaning of a “natural born Citizen.”
Judge Bent stated that Wong Kim Ark concluded that the original framers obtained their model of citizenship from the English common law. While he told us by citing and quoting Wong Kim Ark what the English common law in England was on subjecthood, he did not present any evidence that the Founders and Framers adopted that English common law to define the new U.S. national citizenship. He concluded without citing to any evidence that “there is no apparent distinction between” a “natural born citizen” and a “natural-born subject.” He failed to discern that Wong Kim Ark, faced with having to interpret and apply the Fourteenth Amendment to determine whether Wong was a “citizen of the United States,” needed to decide who was a “citizen” under that amendment, not who was a “natural born Citizen” under Article II, and that the Court used the English common law as an aid in doing that and not to define an Article II “natural born Citizen.” He also failed to address Minor which in specifically defining a “natural-born citizen,” used a model of citizenship that was based on the law of nations which became American national common law and not the English common law. In this connection, he also avoided any discussion of, among other historical sources provided by Mr. Paige, the naturalization acts of 1790, 1795, 1802, and 1855 which were all jus sanguinis based (law of nations and American common law) and not jus soli based (English common law). These statutes are highly relevant in determining what the Founders and Framers meant by the “natural born Citizen” clause, for the early acts were passed by many members of the First and Third Congress who were intimately involved in the drafting and passage of the Constitution.
Judge Bent stated that the decision of Ankeny v. Governor of Indiana, 916 N.E.2d 678 (Ind.Ct.App. 2009) is the “most comprehensive decision” on the meaning of a “natural born Citizen” and as such discusses the “the historical basis for the use of the phrase.” As we saw above, Ankeny's reliance on Wong Kim Ark to expand the group of "natural born Citizens" to include children born in the United States to alien parents is misplaced. Additionally, there is not one word in the Ankeny decision that addresses the purpose for which the Founders and Framers included the “natural born Citizen” clause in the Constitution as part of the requirements to be eligible to be President and Commander in Chief of the Military. There is not one word in the decision which looks to what the Founders and Framers intended the clause to mean when they included it in the Constitution. What is also amazing is that the Ankeny court hardly even knew who Emer de Vattel was despite the historical record amply demonstrating the immense influence that Vattel had on the founding generation and beyond and as we have seen above the U.S. Supreme Court adopting his definition of a “natural born Citizen.”
In discussing Ankeny, Judge Bent said that “‘natural born Citizen’ is not dependent on the nationality of the parents but reflects the status of a person born into citizenship instead of having citizenship subsequently bestowed. The distinction is eminently logical.” But upon close examination, this distinction is not logical at all. This argument is tantamount to arguing that any person who is a “citizen at birth” is a “natural born Citizen.” This is fallacious reasoning called the fallacy of affirming the consequent. We know from the definition of a “natural-born citizen” provided by Minor and other historical sources and U.S. Supreme Court case law cited, that satisfying the definition means that one is necessarily a “citizen” from the moment of birth. But being a citizen from the moment of birth is a necessary condition of being a “natural born Citizen.” It is not a sufficient condition, for according to Minor v. Happersett, the definition also contains the two requirements of being born in the country to “citizen” parents. Hence, just showing that one was “a citizen at birth” only satisfies part of the definition which by the very nature of the definition is necessary but not sufficient. Here is an example of this fallacy: If someone is smart, then someone is a professor. Someone is a professor. Therefore someone is smart. This argument is not valid. It demonstrates the fallacy of affirming the consequent. The first premise does not state that if one is a professor one is smart. Rather, it states that being a professor is the consequence of or follows from being smart. So, being a professor does not necessarily mean that one is smart. So likewise, the definition of a “natural born Citizen” does not state that being “a citizen at birth” makes one a “natural born Citizen.” Rather, being “a citizen at birth” is the consequent of or follows from being a “natural born Citizen.” Being “a citizen at birth” does not prove that one is a “natural born Citizen,” for the other two conditions of being a “natural born Citizen” must also be proven. There is also case law and statutes which prove that simply being “a citizen at birth” does not make one a “natural born Citizen.” Wong Kim Ark and Rogers v. Bellei, 401 U.S. 815(1971) said that children born out of the United States to “citizen” parents are citizens at birth, but are made such by naturalization statutes of Congress and not the common law or even the Fourteenth Amendment. We know from a plain reading of these statutes that they only define “citizens of the United States” and not “natural born Citizens.”
Judge Bent said that “Mr. Paige has tendered a scholarly article authored by Attorney Mario Apuzzo of New Jersey United States
So as we can see, Judge Bent has erred for various reasons in dismissing Mr. Paige’s ballot challenge against presidential candidate Barack Obama and Vermont Secretary of State.
Mario Apuzzo, Esq.
November 17, 2012
http://puzo1.blogspot.com
####
Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved
Do you have a copy of the Motion to Dismiss that was filed by Vermont's Attorney General?
ReplyDeleteThank you, Mr. Apuzzo, for staying with this issue so thoroughly and eloquently.
ReplyDeleteThe proof, really, is in understanding what was in the minds of the Framers regarding the definition of the term. And from John Jay's letter to G. Washington during the Constitutional Convention, to a reference by B. Franklin in this regard (i.e. familiarity w/ de Vattel), to various commenters at the time on de Vattel, showing familiarity with his take on this matter, to G. Mason's comment to the Virginia body discussing all this that the U.S. did not follow British Common Law - the conclusion is clear; and you are correct: the term means a person with two U.S. citizen parents.
Hold your ground on this, Mr. Apuzzo. The truth WILL out. But it needs patriots like you to keep the pressure on, for that breakthrough to take place.
PLEASE SPREAD FAR AND WIDE!!!!
ReplyDeleteTHIS MUST GO VIRAL!!!
YOU MUST SIGN!!!!
TIME IS RUNNING OUT!!!!
https://petitions.whitehouse.gov/petition/require-barack-obama-allow-public-examination-his-birth-certificate-records-his-college-university/WkkLbngp
Sign this petition:
ReplyDeletehttps://petitions.whitehouse.gov/petition/ask-united-states-supreme-court-define-term-natural-born-citizen-presented-our-us-constitution/C7FrWk8G?utm_source=wh.gov&utm_medium=shorturl&utm_campaign=shorturl
The Obots have changed their position. Before they said that there were only two classes of "citizens," the "natural born Citizens" and the "naturalized citizens." They conveniently left out the "citizens of the United States." Now they say that there were only ever three types of U.S. citizen:
ReplyDelete1. Those who were citizens at the time of the adoption of the Constitution.
2. Those who are naturalized as U.S. citizens.
3. Those who are natural born citizens.
It just keeps getting better and better.
The Constitution naturalizes citizens "without the aid of legislation" (See 169 US 649, 703 (1898). Those who were citizens at the time of ratification, and those "born subject to the jurisdiction" are naturalized. Those born of US Citizen parents on the soil need no naturalization.
ReplyDeleteMick,
ReplyDeleteAs I said, the Obots just keep getting better and better. They add that since “those who were citizens at the time of the adoption of the Constitution” are all long dead, there are presently only two categories of US citizens, the “natural born citizens” and the “naturalized citizens.” This is really funny. First, I guess the early “citizens of the United States” who are long dead caused the class of citizens called “citizens of the United States” to no longer exist, but the early “natural born Citizens” who are also long dead did not cause the class of citizens called “natural born Citizens” to also no longer exist. Second, I guess that since the early “citizens of the United States” are long dead, so did all those “citizens of the United States” that followed them to the present and into the future. “Citizens of the United States” just disappeared from our nation. I wonder where they all got to? Oh, but then the Obots forget that we have a Fourteenth Amendment, which defines a “citizen of the United States.” So, the “citizen of the United States” citizen class did not die off after all. Don’t you just love Obot logic.
And by the way, where did the Obots ever get the ridiculous notion that the Founders' and Framers' definition of an Article II "natural born Citizen" miraculously changes based upon what Congress through a statute or even the Fourteenth Amendment may later decide is a "citizen of the United States" at birth or after birth?
Question on electoral college ballot counting - in the case of objections due to lack of eligibility - how are they judged?
ReplyDeletephil stone,
ReplyDeleteAs a start, take a look at the 20th Amendment and 3 U.S.C. Sec. 1 et seq., and especially Sec. 15. See also Jack Maskell and Elizabeth Rybicki, Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress (CRS Report, Dec. 8, 2008) (includes a discussion of objecting to the counting of one or more electoral votes and how Congress resolves the objection(s)).
Thanks - looks like House and Senate must both agree on objection - otherwise it is overruled - lost cause like impeachment.
ReplyDeleteMario,
ReplyDeleteHappy Thanksgiving and thank you for your diligence to this issue.
I, like many I'm sure, am profoundly disappointed where we find ourselves in today's America after the re-election of Barack Hussein Obama. Given the opportunity to expose him for a second time, all of the media and the political class again took a pass and left us still with a person that is not only ineligible, but a person that has been allowed to conceal almost everything about his life history - to our detriment.
This case represents just one more example of the corruption of our judiciary and the political elite that they represent on this issue. Only a layman, I follow your analysis and arguments quite easily and the idea that a legal professional can twist, ignore, and convolute facts, history and legal precedent as did this judge is just mind boggling. Of course, in the end it doesn't matter, since nobody is going to hold those in power to account for this constitutional breach.
And now, we look forward to the next election cycle when the republicans will have at least two candidates whose birth narrative clearly shows that neither is a Natural Born Citizen - Marco Rubio and Bobby Jindhal - but it won't matter. Add in Rick Santorum who refused in this cycle to provide information on his father's citizenship status, who since (thanks to the Freedom of Information Act) has been shown to have acquired his citizenship after Santorum's birth rendering the former Senator also ineligible, and there will probably be three ineligible candidates on the Republican side.
I admire you for your pursuit of the truth and only hope that someday, somehow the intent of the founders will be honored.
In the 20th Amend sect 3 it states (... or if the President elect shall have failed to qualify ...).Does this mean that there is a formal process for qualifying a President or is it left up to objections at the joint session of congress for electoral vote counting? thanks for your guidance- Phil Stone
ReplyDeletephil stone,
ReplyDeleteThe 20th Amendment foresees a case wherein a presidential or vice-presidential candidate wins the general election in November and wins the Electoral College election in December, making him/her the “President elect” or “Vice-President elect,” but fails to be constitutionally eligible for the office. Because he is not an Article II “natural born Citizen,” this was the case with President elect, Barack Obama, in the 2008 election, and can again be with the 2012 election. With the 2012 election, Congress should step in and declare whether he is constitutionally “qualified” for the office. If Congress decides that he is not constitutionally qualified, then Congress constitutionally has no power to confirm his election and should not do so.
The Congressional review of Obama’s eligibility to be President could start at any time on an informal basis. A court could also have a case in which it declares that he is not constitutionally eligible. If there is no Congressional informal review or court decision, Congress can still take action during the Congressional joint session in January 2013. If there are two written objections during that session, one from the House and one from the Senate, there would have to be a formal review with formal decision from Congress. If no Congressperson objects, it will simply be a repeat of 2008-2009, with political, economic, military, and social ramifications for our constitutional republic continuing as is and as may develop in the future.
And now, as we move forward to the next election the Republican see that two wrongs do make it right and are now pushing Rubio, and Jindal to make the run in 2016 as their Progressive champion, don't get me wrong either of these gentlemen would be excellent presidential material if it weren't for their NBC status which is well documented. My fear is our nation in its ever changing demographics in the more populous states will sign on to changing our constitutional meaning of NBC without ever going through the amendment process; and with the very liberal courts now in place it is almost a slam dunk for the Progressive Movement because there is no effective challenge on any of the existing courts that would stand up against a higher court review. It is a shame, but I believe a reality, but that does not mean we stop trying to effect reason at some level within congress and the judicial system, it took over 50 years of the Progressive plodding to get the congress, and judicial system to the point it is today; if nothing else we can start the plodding in the opposite direction through our ballot boxes, and challenges to the status quo of today's courts, and the sitting congresses to come. A huge challenge but one we all need to be a part of starting yesterday.
ReplyDeletePuzo1 said,
ReplyDelete"The Congressional review of Obama’s eligibility to be President could start at any time on an informal basis."
This is true. Presidential Electors have been held many times to NOT be members of the government (See McPherson v. Blacker,146 U.S. 1, 35(1892); Fitzgerald v. Green, 134 U.S
. 377, 378 (1890); Ray v. Blair 343 U.S. 214, 224, 225
(1952)).
The Presidential Electors are independent of the US government, are under state authority, and meet in the various state capitals. While Obama's apologist attornies and toadie courts have said that the judgment of ineligibility of a Presidential candidate within individual states would "cause chaos", that is exactly how it is supposed to work.
At this point the eligibility of a Presidential elect is not a "political question" but a Juditial one, since a political power or question is that
which a sovereign or state exerts by its own authority. Rhode Is. V. Mass., 37 US 657, 738 (1838), and Electors are independent of the government. Furthermore Ray v. Blair (Id., 223, 224) holds that the President elect's ineligibility may become apparent BEFORE the Electoral College convenes. The Florida Supreme Court has held that eligibility for office is a judicial determination, upon any challenge of eligibility properly made (Shevin v. Stone, 279
So. 2d 17 ,22 (Fla. 1972)
The issue of a President elect's eligibility only becomes a "political question" when an objection is filed after what may be a judicial determination of ineligibility w/in a state, when the objection is sponsored by a member of each house of Congress, and Congress convenes to discuss it. ONLY then is it a political question.
Mick,
ReplyDeleteIn order for a constitutional republic to preserve itself and survive, it needs a strong and independent judicial branch of government which is truly committed to protecting the republic by enforcing its constitution. Under our constitutional view of separation of powers, the U.S. Supreme Court is the final arbiter of the meaning of the "natural born Citizen" clause. If that Court ever ruled on its meaning, Congress could not reasonably argue that presidential eligibility is a "political question" which would free Congress to do as it wished with the matter. The problem that we face as a constitutional republic is that for policy reasons, the Supreme Court, a critical part of our constitutional government, has "evaded" deciding the question of what is an Article II "natural born Citizen" and whether Barack Obama meets that definition. Only history will tell what consequences its refusal to decide the issue has had and will have on America.
Indeed you are correct Mr. Appuzo. SCOTUS has already ruled with precedence on what a nbC is (in Minor), so in reality it can never be a "political question". US law is being ignored, but that is probably because there is an illegal POTUS in the chair, thus since he is the executor of the laws, there is no law and no Constitution. I am filing a contest of election in Fla (Fl. ss. 102.168(1)(3)(b)(5)(7). By the statutes I am guarenteed a hearing. I will be asking the court to alert the Florida Presidential Electors as to Obama's eligibility. My action will be perfectly filed w/in the statutes, but I have no illusions. I will make them all lie in the light of history, and history will know who committed treason and sold out the Republic. There will be a public record of the treason committed. I realize that I am asking the judiciary to preserve the law and Constitution which no longer exists. Obama represents the death of the Republic.
ReplyDeleteMick,
ReplyDeleteGood for you. Election contests should be filed in every one of our 50 states. But time is running out under the limitations statutes that each state has in place for election contests to be filed.
The Founders and Framers put in the Constitution that the type of “citizen” who was eligible to be president depended upon when the person was born. They provided in Article II, Section 1, Clause 5 that for those born before the Constitution was adopted, they could be “Citizens of the United States.” For those born after the Constitution was adopted, “[n]o Person except a natural born Citizen” could be President. Excluding anyone who was not a “natural born Citizen,” for those born after the Constitution was adopted, no one qualified to be President who may be a “citizen of the United States” rather than a “natural born Citizen.” Consider that American common law, as Minor v. Happersett confirmed, makes those born in the country to “citizen” parents “natural born Citizens” and the Fourteenth Amendment, as U.S. v. Wong Kim Ark confirmed, makes those who are born or naturalized in the United States and “subject to the jurisdiction thereof” “citizens of the United States.” These historical and legal developments along with reason and logic demonstrate that today a child who is born in the United States to “citizen” parents, making the child a "natural born Citizen,” is eligible to be President, and a child who is born or naturalized in the United States and “subject to the jurisdiction thereof,” making the child only a “citizen of the United States,” is not.
ReplyDeleteBarack Obama, being born to a non-U.S. “citizen” father, if born in Hawaii, is only a Fourteenth Amendment “citizen of the United States” from the time of his birth in 1961, but not an Article II “natural born Citizen.” It simply is not humanly possible for Obama to be a “Citizen of the United States, at the time of the Adoption of this Constitution” which was 1787. Under Article II, he must therefore be a “natural born Citizen” if he wants to be eligible to be President. But under the well-settled definition of a “natural born Citizen” as confirmed, among other historical and legal sources, by both Minor and Wong Kim Ark, Obama is not a “natural born Citizen.” At best, and only if born in the United States, he is under the Fourteenth Amendment a “citizen of the United States,” but in 1961 and not “at the time of the Adoption of this Constitution” which was 1787. Hence, being neither a “natural born Citizen” nor a “Citizen of the United States, at the time of the Adoption of this Constitution,” Obama is not constitutionally eligible under Article II to be President and Commander in Chief of the Military.
"Mick,
ReplyDeleteGood for you. Election contests should be filed in every one of our 50 states. But time is running out under the limitations statutes that each state has in place for election contests to be filed."
Florida has the best election challenge statute in the nation. I have 10 days from the final certification of the election by the ECC (which began on 11/20). The statute SPECIFICALLY lists "ineligibility of the winning candidate" as a cause of action. Thus, by the statute I have perfect standing.
One of the problems, which have made it easier to swat these challenges away is that challengers are not following their statutes. Such as in Ga., where the action was not filed within 5 days AFTER the primary election, but was filed BEFORE the election. Irions, a supposed "lawyer" should have known that challenge was hampered from the start. Then there's Taitz, who files in states where she is not even eligible to vote.
CONTD>>>>>>>>>>
Florida Eletion Statute 102.168:
ReplyDelete102.168 Contest of election.—(1) Except as provided in s. 102.171, the certification of election or nomination of any person to office, or of the result on any question submitted by referendum, may be contested in the circuit court by any unsuccessful candidate for such office or nomination thereto or by any elector qualified to vote in the election related to such candidacy, or by any taxpayer, respectively.
(2) Such contestant shall file a complaint, together with the fees prescribed in chapter 28, with the clerk of the circuit court within 10 days after midnight of the date the last board responsible for certifying the results officially certifies the results of the election being contested.
(3) The complaint shall set forth the grounds on which the contestant intends to establish his or her right to such office or set aside the result of the election on a submitted referendum. The grounds for contesting an election under this section are:
(a) Misconduct, fraud, or corruption on the part of any election official or any member of the canvassing board sufficient to change or place in doubt the result of the election.
(b) Ineligibility of the successful candidate for the nomination or office in dispute.
(5) A statement of the grounds of contest may not be rejected, nor the proceedings dismissed, by the court for any want of form if the grounds of contest provided in the statement are sufficient to clearly inform the defendant of the particular proceeding or cause for which the nomination or election is contested.
(7) Any candidate, qualified elector, or taxpayer presenting such a contest to a circuit judge is entitled to an immediate hearing. However, the court in its discretion may limit the time to be consumed in taking testimony, with a view therein to the circumstances of the matter and to the proximity of any succeeding election.
This statute allows perfect standing. As dothe Florida Declaratory Judgment statutes
CONTD.>>>>>>
The ECC is an indispensible party:
ReplyDelete(4) The canvassing board responsible for canvassing the election is an indispensable party defendant in county and local elections.
Action must be filed in Leon Co. Circuit court:
102.1685 Venue.—The venue for contesting a nomination or election or the results of a referendum shall be in the county in which the contestant qualified or in the county in which the question was submitted for referendum or, if the election or referendum covered more than one county, then in Leon County.
Declaratory Jugment statute allows a judgment of an event which has not happened, as if it has already occurred--- a key elemet of the "actual controversy" element of standing:
86.051 Enumeration not exclusive.—The enumeration in ss. 86.021, 86.031 and 86.041 does not limit or restrict the exercise of the general powers conferred in s. 86.011 in any action where declaratory relief is sought. Any declaratory judgment rendered pursuant to this chapter may be rendered by way of anticipation with respect to any act not yet done or any event which has not yet happened, and in such case the judgment shall have the same binding effect with respect to that future act or event, and the rights or liability to arise therefrom, as if that act or event had already been done or had already happened before the judgment was rendered.
CONTD.>>>>
The Florida Supreme Court has held that Eligibility for office is a JUDICIAL DETERMINATION, made upon a correct challenge of eligibility brought before the court. (Shevin v. Stone, 279 So. 2d 17,22 (Fla. 1972))
ReplyDeleteMy challenge will be perfectly brought w/in the statutes (I will post it here when it happens in a few days), but I have no illusions that the law or the constitution exists anymore.
Most likely they will lie and stall, saying "it's a political question". Of course that is a lie, since a political question is one reserved to a sovereign or state, and as I have shown, Presidential Electors are NOT MEMBERS OF THE GOVERNMENT, and are SPECIFICALLY independent of the government--- therefore the question before the electoral college is NOT POLITICAL.
I will make them all lie, all the way to the top. The light of history will know who committed treason.
Mick,
ReplyDeleteHere are your two biggest hurdles:
1) “I have reviewed and considered the legal authority submitted by the Plaintiff and the Defendant on this issue and conclude as a matter of law that this allegation [Obama’s father not being a US citizen], if true, would not make the candidate ineligible for the office.”Judge Lewis, Circuit Judge, Second Judicial Circuit, in and for Leon County Florida, in Voeltz v. Obama, June 29th, 2012
2) “In addition, to the extent that the complaint alleges that President Obama is not a “natural born citizen” even though born within the United States, the Court is in agreement with other courts that have considered this issue, namely, that persons born within the borders of the United States are “natural born citizens” for Article II, Section I purposes, regardless of the citizenship of the citizenship of their parents. See Wong Kim Ark, 169 U.S. 649, 705 (1898)”, Judge Cooper, Circuit Judge, Second Judicial Circuit, in and for Leon County Florida, in Voeltz v. Obama, September 6th, 2012
That might be the opinion of Judge Lewis and Cooper, but it is not the opinion of the U.S. Supreme Court. There is no historical and legal basis for their opinion.
ReplyDeleteLewis' "decision" went against 2 centuries of Supreme Court dicta and precedence on the meaning of natural born Citizen. The decision of the court was that "Obama was not nominated or elected" (which of course is nonsense, because Fl. ss. 101.252(1) says that he was-- but Lewis said that "did not apply to Presidential Primaries"-- only becuase he said so-- citing no statute or court decision), and therefore plaintiff had no standing. Therefore the Constitutional question should not have been reached. The same with Ankeny, which held that the sole question before it was whether the Secretary of state had a duty to check the eligibility of POTUS candidates--- EXPLICITLY.
ReplyDeleteThese toady courts are protecting Obama by using fraudulent non precedent as if the knowledge and meaning of the term of art natural born Citizen began in 2008. He who controls the present controls the past. Like I said, I have no illusions about the treason being committed, but I will expose all of the treasoners in the light of history.
There is still time for someone to organize, finance, and support the contest of the election at the state levels as Mick is doing in Florida.If Romney really wants to be president he should use some of his campaign money,his skills at oganizing,and legal staff to persuade the states to enforce their laws. Do not think Trump would give up if there as still a chance, He would probably be working on congress also.Phil Stone
ReplyDelete"There is still time for someone to organize, finance, and support the contest of the election at the state levels as Mick is doing in Florida.If Romney really wants to be president he should use some of his campaign money,his skills at oganizing,and legal staff to persuade the states to enforce their laws. Do not think Trump would give up if there as still a chance, He would probably be working on congress also".Phil Stone
ReplyDeleteFat chance of that Phil. Politicians like Romney, and Billionaires like Trump are all controlled by the criminal central bankers whom finance everything they do, and whom have installed the Usurper SPECIFICALLY to void the US Constitution. They will not bite the hand. Romney was never going to win, and Trump is merely a court jester working to distract from the actual constitutional question of Obama's "improper ascendant" (improper ancestor-- see Federalist 68).
The question is why the paucity of lawyers and "Constitutional scholars" in this cause? The answer is plain, that lawyers in general know little of the Constitution, and generally are of low moral status. They, like the media, are the Useful idiots. The "constitutional scholars" have either been threatened to shut up, or are cowed by the relentless scorn, by the useful idiot media, of anyone that questions their messiah-- the Usurper. Where is Herb Titus?
Mick is probably right - I am used to fixing problems and find it hard to believe the number of judges and elected congresspeople who refuse or are unable to read and understand the constitution and supreme court cases which define our rule of law. Mick has the ability to at least do a court challenge. Dr. Orly tries hard but does lack some training. My grandmother marched in the street back in 1920 for the right to vote. About all I can do now as an old marine is march in the street demonstrating for congresspeople to abide by their oaths of office and give us honest representation. - Fat chance they would do it. Phil Stone
ReplyDeleteThe first thing I would do if appointed Director of the CIA would be to memorize the files of all those above me. Gen.Petraeus is an accomplished military politician. The question is when will he and the other generals in hot water decide to blow the whistle on Obama's ineligibility to be in office to get off the hooks they are on.No conspiracy is without holes.Perhaps he needs reminding. old marine Phil Stone
ReplyDeleteFiled in Fla.:
ReplyDeleteSTATEMENT OF FACTS
7. As a Florida elector, claimant has taken an oath to “protect and defend the Constitution of the United States” (Art. 6 s. 3 Florida Constitution).
8. The U.S. Constitution is the supreme law of the United States (Art. 6, c.2). Article 2 Section 1 Clause 4 of the U.S. Constitution is a self executing constitutional provision, that uses the words “no person but a natural born Citizen shall be eligible” (sic), leaving no discretion in the eligibility requirement. As a self executing constitutional provision, no law or statute is necessary to enforce it.
9. Plaintiff asserts that Barack Hussein Obama is not a natural born Citizen of the United States because he was born a British subject of a British subject father, Barack Obama Sr., whom was married to the mother of Barack H. Obama at the time Barack H. Obama was born.
10. Barack Obama Sr., a citizen of the British colony of Kenya, and his children, were subject to the operation of the British Nationality Act of 1948. By the operation of Part 1 Section 1 of that Act, Barack Hussein Obama became a British subject, upon birth to a British subject father. It is not known whether he has lost that birth allegiance to the British crown.
11. The natural born Citizen clause pertaining to Presidential eligibility is a national security requirement designed to prevent foreign influence in the highest levels of government
12. The purpose of the natural born Citizen clause, prevention of foreign influence, is affirmed by Federalist 68, March, 1788, by Alexander Hamilton. Barack Obama Sr. is “an improper ascendant” (an improper ancestor), and Barack Hussein Obama is not “a creature of their own” (a natural born Citizen).
13. Therefore Barack Hussein Obama is a direct threat to the safety and security of the United States, and its Constitution, which plaintiff must protect and defend by oath.
14. The inclusion of the natural born Citizen clause in the U.S. Constitution implicitly adopts the concepts of natural law and law of nations (Morissette v. United States, 342 U.S. 246, 263 (1952). See also Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990), that adoption of a term of art adopts the entire body of law from which it is contained). Law of nations is explicitly adopted in Art. 1 cl. 10 s. 8.
15. The British common law doctrine of “perpetual allegiance” ended on July 4, 1776, when the
16. United States adopted law of nations and the “right of Election.” At that point in time U.S. residents became citizens of the United States, rather than British subjects (see Inglis v. Trustees of Sailors Snug Harbor, 28 U.S. 99, 122-126, (1830)). Any construction of natural born Citizen to mean the same as “natural born subject” is inconsistent with the US Constitution and Florida Statute 2.01.
17. Law of Nations defines the term of art “natural born Citizen” as one born in the country parents who are that country’s citizens (see Emmerich de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758).
18. The U.S Supreme Court’s definition of the term of art natural born Citizen mirrors Vattel’s “The Law of Nations” in The Venus, 12 US 253, 289 (1814), Wong Kim Ark, 169 US 649, 679, 680 (1898), and with precedence in Minor v. Happersett, 88 US 162, 167, 168. Thus the definition stated therein is the law of the United States.
Election Contest filed yesterday in Fla. Leon County Circuit Court: Where 102.168(1)(3)(b)gives standing to ANY voter or taxpayer to challenge the "nomination or election of ANY PERSON to office" based on the candidate's eligibility for the office sought. US Code 3 S.5 requires that election contests be adjudicated by the highest judicial tribunal (Fl. Supreme Court)by 6 days prior to Elector Voting Day in order to attain Section 2 status of the Florida Electors. (Meaning that eligibility for office is a JUDICIAL determination-- not a political one-- SPECIFICALLY by US statute). The Florida Supreme Court has also held that eligibility for office is a JUDICIAL DETERMINATION (Shevin v. Stone (1972)). It looks like the Fla. courts will have to make a determination of the meaning of natural born Citizen without first deciding that defendant has no standing (WITH PRECEDENCE). Plaintiff has PERFECT STANDING given by Florida statutes. Will they actually go all in on the lie of Obama's eligibility, and actually lie with precedence?
ReplyDeleteCONTINUED.>>>>>>>>>
Mick
ReplyDeleteHave you posted your filings to the internet?
Do you have a case number yet?sseduve