Thursday, February 16, 2012

Tisdale v. Obama and the “Natural Born Citizen” Clause

                      Tisdale v. Obama and the “Natural Born Citizen”   Clause


                                                              By Mario Apuzzo, Esq.
                                                                  February 16, 2012



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 af´Čürmative."

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

Friday, February 3, 2012

All That Is Wrong with Georgia State Judge Michael M. Malihi’s Decision that Putative President Obama Is a “Natural Born Citizen”


All That Is Wrong with Georgia State Judge Michael M. Malihi’s Decision that Putative President
                                                         Obama Is a “Natural Born Citizen”


                                                               By Mario Apuzzo, Esq.
                                                                   February 3, 2012

Georgia State Administrative Law Judge, Michael M. Malihi, issued his decision on Friday, February 3, 2012, finding that putative President, Barack Obama, is eligible as a candidate for the presidential primary election under O.C.G.A. Sec. 21-2-5(b). The decision can be read here, http://obamareleaseyourrecords.blogspot.com/2012/02/judge-malihi-rules-against-plaintiffs.html .  I must enter my objection to this decision which is not supported by either fact or law.

The Court held: “For purposes of this analysis, this Court considered that President Barack Obama was born in the United States. Therefore, as discussed in Arkeny [sic meant Ankeny], he became a citizen at birth and is a natural born citizen.”

But there is no evidence before the Court that Obama was born in the United States. The court can only rest its finding of fact on evidence that is part of the court record. The judge tells us that he decided the merits of the plaintiffs’ claims. But he does not tell us in his decision what evidence he relied upon to “consider[]” that Obama was born in the United States. The judge “considered” that Obama was born in the United States. What does “considered” mean? Clearly, it is not enough for a court to consider evidence or law. It must make a finding after having considered facts and law. The judge simply does not commit to any finding as to where Obama was born. Using the word “considered” is a cop out from actually addressing the issue. Additionally, we know from his decision that neither Obama nor his attorney appeared at the hearing let alone introduced any evidence of Obama’s place of birth. We also know from the decision that the judge ruled that plaintiffs’ documents introduced into evidence were “of little, if any, probative value, and thus wholly insufficient to support Plaintiff’s allegations.” Surely, the court did not use those “insufficient” documents as evidence of Obama’s place of birth. Nor does the judge tell us that he used those documents for any such purpose. The judge also does not tell us that the court took any judicial notice of any evidence (not to imply that it could). The judge did find that Obama has been certified by the state executive committee of a political party. But with the rules of evidence of superior court applying, this finding does not establish anyone’s place of birth. Hence, what evidence did the judge have to rule that Obama is born in the United States? The answer is none.

The court did not engage in its own thoughtful and reasoned analysis of the meaning of an Article II “natural born Citizen,” but rather relied only upon 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), a state-court decision which erred in how it defined a “natural born Citizen.”

The court says that Ankeny is persuasive. The court does not show us why Ankeny is persuasive other than to just provide some quotations from the decision. On the contrary, upon close analysis, we can see that Ankeny is far from persuasive on the definition of a “natural born Citizen.” The court’s decision can only be as sound as the Ankeny decision may be. But an analysis of that decision shows that it was incorrectly decided as to its definition of an Article II “natural born Citizen.”

Presidential eligibility is a national issue. Under our Constitution, like the States do not have power to naturalize citizens, they also do not have power to change, add, or diminish the meaning of an Article II “natural born Citizen.” See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (states have no authority to change, add, or diminish the eligibility requirements for members of Congress). Moreover, as naturalization needs uniformity, so does the citizenship standard needed to be met by those wishing to be eligible to be President. Hence, any state court decision on the meaning of a “natural born Citizen” is not binding on the nation in determining who is eligible to be President. Such a decision can only be ultimately made by the U.S. Supreme Court which would make its decision the law of the entire nation. The Ankeny case is a decision of the Indiana state court and not by the U.S. Supreme Court. For this reason, the Ankeny decision is not binding on any court deciding the question of what is a “natural born Citizen.” But not only is the decision not binding, it also needs to be rejected for diminishing the meaning of an Article II “natural born Citizen.”

Apart from the Ankeny decision not being binding on the national issue of what is a “natural born Citizen,” the decision itself should be rejected on its merits.

The Constitution’s text does not define a “natural born Citizen.” Yet, Ankeny did not even discuss what the Founders’ and Framers” original intent was in including the “natural born” Citizen clause in the Constitution. It is a rule of constitutional construction that we can learn what the Founders and Framers intended by a certain term they included in the Constitution by discovering what their purpose was for including the term in that document. But the Ankeny court told us what an Article II “natural born Citizen” is without examining the purpose for which the Founders and Framers included that clause in Article II, Section 1. No where in the decision do we see that the court examined what the Founders’ and Framers’ intent was for inserting the clause in the Constitution. The court conducted no independent historical research or analysis regarding what the Founders and Framers intended when they wrote the “natural born Citizen” clause in the Constitution in 1787. In fact, no where in the decision did the court even raise the issue of the Founders’ and Framers’ intent when they wrote the clause in Article II. It provided no sources from the Founding period which in any way supports its holding. It discussed no historical records or declarations of historical figures. So its decision as to what a “natural born” Citizen is has no historical or legal support.

The Founders and Framers placed their trust in “the Laws of Nature and of Nature’s God.” The Declaration of Independence, para. 1. They came to learn what natural law was from studying ancient history and its influence in the then modern world. They knew from studying this history and the great publicists, including Emer de Vattel who was the Founders’ and Framers’ favorite, that natural law became the law of nations. And Vattel in Section 212 of his The Law of Nations (London 1797) (1st ed. Neuchatel 1758) defined what a “natural born Citizen” is. There he said that the “natives, or natural-born citizens, are those born in the country, of parents who are citizens.” The Indiana state court in Ankeny did not even discuss natural law and the law of nations. The Ankeny court just barely acknowledged Emer de Vattel. It refers to Vattel's highly influential work, The Law of Nations, as "an eighteenth century treatise" and discusses neither Vattel nor his work. Hence, it fails to understand the importance of the law of nations and Vattel to the Founders and Framers and in the founding of our nation and their drafting of our Constitution in which they included the law of nations and not the English common law as part of Article III "Laws of the United States." The court hardly knew who Emer de Vattel was. This should be an indication to anyone who has seriously studied the Obama eligibility issue of how much reliance we can place on the court’s ruling as to what a “natural born Citizen” is.

Judge Malihi also did not discuss the early naturalization statutes passed by our early Congresses. These acts are critical in understanding the definition of a “natural born Citizen” because so many members of the early Congresses were Founders and Framers. “The significance of such a statute passed by the first Congress was, of course, the fact that many of the framers of the Constitution were Members of that first Congress, as well as the fact that the first Congress’s understanding of the meaning of the terms of the Constitution was most contemporaneous in time with the document’s adoption. One author has noted that of the “Committee of Eleven,” which first proposed to the Convention of 1787 the eligibility requirement of being a “natural born” citizen, 8 of the 11 committee members were in that first Congress, and none stated objections to or disagreement with the characterization of the term “natural born” by statute by the Congress.” Christina Lohman, Presidential Eligibility: The Meaning of the Natural-Born Citizen Clause, 36 Gonzaga Law Review 349, 371 (2000/2001). The Naturalization Acts of 1790, 1795, and 1802, prove that only a child born in the United States to U.S. citizen parents can be an Article II “natural born Citizen.” These acts treated children born in the United States to alien parents as aliens themselves. These acts also naturalized children born abroad to U.S. citizen parents to be in 1790 “natural born citizens” and then in 1795 and thereafter “citizens of the United States.” By analyzing these acts, we can see that the only child over whom Congress did not exercise its naturalization power was a child born in the United States to citizen parents. Hence, that child was the “natural born citizen.”

Ankeny misread Minor v. Happersett, 88 U.S. 162 (1875), saying that the Minor Court read Article II and the Fourteenth Amendment "in tandem," suggesting without any support that the latter somehow amended the former. It also erred when it said that Minor "left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen." The Court did no such thing. Rather, the Court left open that question as it applies to a Fourteenth Amendment born "citizen of the United States," not an Article II "natural born Citizen." Minor told us that there is no doubt who a “natural born Citizen” is, telling us that it is a child born in the country of two U.S. citizen parents. That definition is based on natural law and the law of nations and not the English common law. Indeed, this confirms that the Founders and Framers gave us only one citizenship definition to be used to determine eligibility to be President. On the other hand, Minor added that there is doubt as to whether a child born in the U.S. to alien parents was even a “citizen.” The Framers gave Congress the power to make future “citizens of the United States” through naturalization. Hence, the doubts have been over the definition making persons the parents of a future “natural born Citizen,” not over the definition making the child of those parents a “natural born Citizen.” It also confounded Minor and U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) as relying upon the English common law to define a “citizen” and a “natural born Citizen.” It said that Minor relied upon the English common law like Wong Kim Ark did when it did not do any such thing, for it relied upon natural law and the law of nations which when applied in the United States became “common-law” (the language that Minor used), which given the definition of a “natural-born citizen” that the Court provided (including the citizenship of the parents as a condition of being a “natural-born citizen”) could not have been English common law but rather was American common law. In order to justify its decision, Ankeny gave authority and respect to the feudal English common law (per Lord Coke and Lord Chief Justice Cockburn) on matters of U.S. citizenship and gave no such authority and respect to our own American common law which Minor showed replaced that feudal law in the new republic. In fact, there is not one word in the Minor decision which sounds in the language of the English common law, yet Ankeny said that it relied upon English common law. It distinguished Minor in footnote 12 by saying that it “contemplates only scenarios where both parents are either citizens or aliens, rather in the case of President Obama, whose mother was a U.S. citizen and father was a citizen of the United Kingdom.” But it did not explain how or why having one U.S. citizen parent rather than none would make any difference when applying the “natural born” Citizen clause.

Wong Kim Ark, a Fourteenth Amendment citizenship case, answered the question left open in Minor, which question concerned whether Wong Kim Ark was a “citizen of the United States,” not an Article II “natural born Citizen.” Wong Kim Ark relied upon the English common law, which historically had been used to define British nationality and not American nationality, to define a “citizen of the United States.” But Ankeny mistakenly concluded that Wong Kim Ark ruled Wong Kim Ark to be a “natural born Citizen” rather than a “citizen of the United States.” Wong Kim Ark did no such thing. There is nothing in Wong Kim Ark decision that suggests that the Court declared Wong Kim Ark an Article II “natural born Citizen” and therefore eligible to be President. The U.S. Supreme Court in Minor v. Happersett (1875) already had told us that there was no doubt as to who could be a “natural born Citizen.” Since there is no doubt and if Wong Kim Ark was a “natural born Citizen,” the U.S. government would not have argued that he was not even a “citizen of the United States,” let alone a “natural born Citizen.” Also, Wong Kim Ark never said that Minor was wrong in defining a “natural born Citizen” in the way that it did under natural law and the law of nations and not the English common law.

Also, Ankeny relied strictly upon U.S. v. Wong Kim Ark and its historical sources for its decision on what a “natural born Citizen” is. They made a monumental declaration as to the meaning of the clause based solely upon a 1898 U.S. Supreme Court case that did not even involve any dispute regarding the meaning of a “natural born Citizen” and which ironically confirmed Vattel’s definition of a “natural born Citizen” as stated by Minor v. Happersett in 1875.

Ankeny incorrectly took the Wong Kim Ark holding that Wong was a Fourteenth Amendment born "citizen of the United States," and even though Wong itself provides a different definition for an Article II "natural born Citizen," and even though Wong cites and accepts Minor's definition of a "natural born Citizen," the Ankeny court equated the Wong "citizen of the United States" with an Article II "natural born Citizen" and said that the Wong decision stands for such a proposition when it does not. Hence, it erroneously relied upon Wong Kim Ark, stating that the Court there declared Wong a “natural born citizen” when it only declared him a “citizen” of the United States. In Footnote 14 it said: “We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a 'natural born Citizen' using the Constitution’s Article II language is immaterial." This is a fantastic statement given the care and precision which the Founders and Framers used with their language in drafting and adopting the Constitution, a circumstance which has always been recognized by our U.S. Supreme Court when called upon to interpret the Constitution. Additionally, Wong Kim Ark itself distinguished between a child born in the country to one or two alien parents and a child born in the country to citizen parents, telling us that while both are “citizens,” only the latter is a “natural born Citizen." Wong 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.’ p. 22, note.” Wong Kim Ark, at 666-67 (citing and quoting Binney’s 1853 pamphlet on citizenship).

Ankeny erroneously conflated an Article II "natural born Citizen" with a Fourteenth Amendment "citizen of the United States." Article II, Section 1, Clause 5 and other parts of the Constitution are clear in distinguishing between a “natural born Citizen” and a “Citizen of the United States.” The text of the Fourteenth Amendment defines a “citizen of the United States,” not a “natural born Citizen.” Even if we were to give them any controlling effect which they do not have, there is also nothing in the legislative debates which indicates that the amendment was designed to change the meaning of an Article II “natural born Citizen.” We cannot just forget about the distinction made by the Framers in Article II between a “natural born Citizen” and a “Citizen of the United States.” Just ruling someone to be a “citizen of the United States” does not necessarily mean that the person is a “natural born Citizen,” for “citizens of the United States” are made up of “natural born Citizens” and naturalized “citizens of the United States.” The latter are naturalized either “at birth” or after birth. “Natural born Citizens” are citizens by virtue of natural law. Other U.S. citizens are citizens by virtue of positive law which in Wong Kim Ark was “by virtue of the first clause of the fourteenth amendment.” Wong Kim Ark, at 686.

Ankeny as did Wong Kim Ark also mistakenly relied upon Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830). What the court did is cite and quote from Justice Story who was in the minority and whose opinion was not accepted by the majority. The majority of the Court in Inglis, which included Chief Justice John Marshall, did not rely upon the English common law jus soli rule but rather the law of nation jus sanguinis rule when it held that if the demandant was born in New York after July 4, 1776, his minority incapacitated him from making any election as to which citizenship to chose and he therefore inherited the character and election and therefore the citizenship of his father (father and mother) who, if born a British subject and if he continued that national character as of the time of his son’s birth, made the son British also, subject to the son renouncing the citizenship chosen for him by his British father during minority and choosing U.S. citizenship upon becoming an adult. Id. at 124 and 126. The majority cited and relied upon Vattel when arguing that a person has a right to elect what nation to be part of in time of revolution. Id. at 122. Justice Story put forth the English common law jus soli rule for citizenship and ruled that the damandant if born in New York was an “American citizen” regardless of the citizenship of his parents (Id. at 164 and 170). But Justice Story was in the minority. The majority of the Court did not adopt Justice Story’s opinion and reliance on the English common law.

Both Ankeny and Wong Kim Ark also mistakenly relied upon that part of the dissenting opinion in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), which was not directed to the issue of slavery disabling blacks from being citizens but rather directed to whether we defined U.S. citizenship under natural law and the law of nations or under the English common law. This dissenting opinion did not carry the day and was also rejected by the Minor court which in 1875 defined a “natural-born citizen” as a child born in a country to citizen parents.

Ankeny used English common law to define an Article II "natural born Citizen" when all U.S. Supreme Court cases, including Minor and Wong Kim Ark, have used American common law to do so.

Ankeny said: “Although President Arthur’s status as a natural born citizen was challenged in the 1880 Presidential Election on the grounds that he was born in Canada rather than Vermont, the argument was not made that because Arthur’s father was an Irish citizen he was constitutionally ineligible to be President.” But the court provided no evidence that anyone then was aware that when Chester Arthur was born, he was born to an alien father. Additionally, even if anyone of any authority was aware that Arthur’s father when he was born was an alien, one constitutional violation does not justify another.

Ankeny cited and quoted from Diaz-Salazar v. I.N.S., 700 F.2d 1156, 1160 (7th Cir. 1983) in support of its definition of a "natural born Citizen" when the question of the meaning of the clause did not exist in that case and the only reference therein to a "natural born Citizen" was made by the court when it recited the facts but not when it provided any legal analysis. It is incredible that the court would give such weight to such a statement of dicta and not give any weight to the U.S. Supreme Court’s definition of a “natural-born citizen” in Minor.

The pro se plaintiffs in Ankeny claimed, among other things, that Obama was not eligible to be President under Article II, Section 1. The court said that “persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents….” The court affirmed the dismissal of plaintiffs’ complaint on defendants’ motion that on its face plaintiffs’ complaint failed to state a claim upon which relief can be granted. What is also amazing about the Ankeny case is that after it went through its explanation as to what a “natural born Citizen” is and while it dismissed the plaintiffs’ case in which they argued both that Obama has yet to prove that he was born in the United States (it called that claim a “non-factual assertion[]”) and that even if he were so born he still fails to meet the legal definition of a “natural born Citizen,” it neither held that Obama was born in the United States nor that he is a “natural born Citizen.” In fact, there was absolutely no evidence before the court that Obama was born in Hawaii. And as we have seen, there was also absolutely no evidence before Judge Malihi showing the Obama was born in the United States. Hence, the Ankeny opinion regarding whether Obama is a “natural born Citizen” is nothing more than an advisory opinion, for the Court never ruled that he was such. The court never addressed the question of whether he was born in Hawaii. No evidence was presented to the court whether he was “born within the borders of the United States.” The court never even examined that issue. Hence, its statement that “persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents” does not prove that Obama was, in fact, born within the borders of the United States” and that he is therefore a “natural born Citizen.”

Ankeny was advisory on the "natural born Citizen" issue because it gave us its definition of a "natural born Citizen" but never applied that definition to Obama's personal situation. It resolved no real controversy. After it pronounced what the law was, it needed to apply that law to the facts. It needed to find that Obama was born in the United States and that he was thus a "natural born Citizen" to give its opinion any binding effect. It never made the finding that Obama was born in the United States. It never said that such a fact was established by the evidence before the court. So its whole opinion on what is a "natural born Citizen" is purely advisory.

To conclude that plaintiffs did not state a sufficient claim given the court’s ruling as to what a “natural born Citizen” is, there would have to exist uncontroverted evidence that Obama was in fact eligible to be President. The question of presidential eligibility is a legal question which the court could examine on a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. But in order to make any conclusion as to whether plaintiffs adequately challenged Obama’s eligibility, given the fact that on a motion to dismiss a complaint the court is supposed to “view the pleadings in the light most favorable to the nonmoving party, with every reasonable inference construed in the nonmovant’s favor, and given the court’s own definition of what is a “natural born Citizen,” the court had to examine whether Obama was “born within the borders of the United States.” This legal hurdle shows that the court could not decide the question of the legal sufficiency of plaintiffs’ complaint by simply examining its face alone. Rather, the court needed evidence outside the complaint (e.g. a birth certificate) which means that the court would have had to convert the motion to dismiss to one for summary judgment.

But not only was there no evidence presented to the Ankeny court showing that Obama was in fact born in the United States, the court never called for such evidence nor did it even make such a factual finding. By the court’s own words, the citizenship of Obama’s parents was not relevant. But surely the only element of its “natural born Citizen” test, that Obama was born in the United States, was critically relevant. Yet the court dismissed the complaint for failure to state a claim without any evidence that Obama was born in the United States. Hence, how can the court dismiss the complaint for failure to state a claim? Rather, what the court did is just by way of advisory opinion tell us what it believes to be a “natural born Citizen” without applying its definition to the question of whether Obama is constitutionally eligible. If the court had addressed the place of birth issue, given its definition of a “natural born Citizen,” it would have ended the live controversy. It did not do that so its opinion is a mere advisory opinion with no application to a live factual controversy producing a just resolution. Lastly, if the court’s decision had not been advisory, the nation today would know whether Obama was or was not born “within the borders of the United States.”

The Ankeny plaintiffs may have argued that place of birth did not matter, given the two-citizen parent argument. But surely, they did not concede that Obama was born in the United States and the court did not make a finding that they made any such concession. Hence, once the court rejected the citizen-parents element and relied strictly on the place of birth, it could not simply conclude that plaintiffs did not state a claim, for the ultimate issue was always Obama's eligibility which they clearly stated in their complaint. Again, the court was duty bound on a motion to dismiss on the face of the complaint to give the non-moving party every reasonable inference. I cannot imagine, given that the court was well aware of the issue of place of birth, the plaintiffs never conceded that Obama was born in the United States, the ultimate issue was eligibility, and the requirement that a court faced with a motion to dismiss on the face of a complaint is to give the non-movant the benefit of all reasonable inferences, the court not treating a complaint that says that Obama was not eligible as also encompassing the place of birth issue or in the alternative not giving the non-moving pro se parties the opportunity to amend their complaint.

The Ankeny court could have completely disposed of the case on an independent state ground. There was no need for the court to journey into the waters of what an Article II “natural born Citizen” is. Not being satisfied with giving us its opinion on what a “natural born Citizen” is as it pertains to persons born in the United States, the court in Footnote 15 even cautioned that while the question of whether someone born out of the United States can be a “natural born” Citizen was not before it, its decision should not be interpreted to mean that being born in the United States is the only way someone can be a “natural born Citizen.”

As we have seen, Ankeny is simply bad law for many reasons. The main one is that it rests on the incorrect notion that Wong Kim Ark declaring that Wong was a “citizen of the United States” from the moment of birth under the Fourteenth Amendment necessarily means that the Court said he was a “natural born Citizen.” Such a position is remarkable given that the Indiana court itself admitted in its own opinion that it is aware that the Constitution contains both “natural born Citizens” and “citizens of the United States” and that the Wong holding did not include “natural born Citizen.”

So, any citation to Ankeny v. Governor of Indiana is misguided for at least two reasons, and as we have seen above there are many more. It read Minor v. Happersett as having doubts about who was a “natural born Citizen” when it had no such doubt. Its doubts were only whether a child born in the U.S. to alien parents was a “citizen” under the law existing prior to the Fourteenth Amendment and necessarily also under that very amendment. It also read Wong Kim Ark as resolving those non-existing doubts and holding that Wong was a “natural born Citizen.” But Justice Gray only held that Wong was a “citizen of the United States” under the Fourteenth Amendment. He never held that he was a “natural born Citizen.” So Wong, not addressing the issue, never resolved any doubts concerning what a “natural born Citizen” is.  In fact, the Court cited and quoted Minor v. Happersett’s definition of the clause which was a child born in the country to citizen parents.

Judge Malihi finds that Obama “became a citizen at birth and is a natural born citizen.” What he is saying is that by the mere fact that Obama was a citizen at birth, he is a “natural born Citizen.” But this is not the definition of a “natural born citizen.”  Judge Malihi's definition must fail just on a textual basis.  The clause is "natural born Citizen," not "born Citizen."  The "natural" must also be given meaning. And when we do give "natural" meaning, we see that it cannot be separated from the word of art and idiom, "natural born Citizen" which means a child born in the country to citizen parents. 

The Founders and Framers looked for a citizenship standard that would assure them that the President and Commander in Chief would have the most allegiance, attachment, and loyalty to the republic. A citizenship test that depended only upon when a child became a citizen would not be sufficient, for it alone would not say anything of how the child would be reared. But a test that included to whom a child was born and that provided some indication of how the child would be raised much better provided for their needs for allegiance to the nation. For those reasons, a “natural born citizen” could not just depend upon being declared a citizen from the moment of birth, which any positive law could declare. Rather, the Founders and Framers included two natural components which were that the child would have to be born in the country to citizen parents. This was the time-honored definition of a “natural born Citizen” under natural law and the law of nations and this is what they accepted.

A “born citizen,” “citizen at birth,” “citizen by birth” or “citizen from birth,” if he or she does not satisfy this original American common law definition, is an Article II “Citizen of the United States” as defined by the Fourteenth Amendment, Congressional Act, or treaty, but not an Article II “natural born Citizen” as defined by natural law and the law of nations which definition is a child born in the country to citizen parents. In other words, a “born . . . citizen of the United States” under the Fourteenth Amendment or Congressional Act is simply a person born in the United States and “subject to the jurisdiction thereof.” As can be seen, in the Fourteenth Amendment there is no citizen parents requirement, but there is a “subject to the jurisdiction thereof” requirement. In contradistinction, in the “natural born Citizen” definition, there is a citizen parents requirement, but there is no “subject to the jurisdiction thereof” requirement, for being born in the country to citizen parents, such a child could not be born other than "subject to the jurisdiction" of the United States. Since the amendment is designed only to allow someone to become a member of the United States and nothing more, according to Wong Kim Ark there is no need to require citizen parents but at least to require that the child be born “subject to the jurisdiction” of the United States. Since a child that is born in the United States to citizen parents will always be born “subject to the jurisdiction” of the United States, we do not engage in “jurisdiction” analysis when exploring whether one is a “natural born Citizen,” but rather just look to see that the person was born in the United States to citizen parents. This is why Minor engaged in no “subject to the jurisdiction” analysis when examining Virginia Minor’s citizenship status. On the other hand, since under Wong Kim Ark a Fourteenth Amendment (or Congressional Act) "born . . . citizen of the United States" can be born in the United States to one or two alien parents, Wong Kim Ark instructs that we must do a "subject to the jurisdiction" analysis which is what it did of Wong. All this tells us that there is a fundamental constitutional difference between an Article II "natural born Citizen," who is born within the sole, full, and complete legal, political, and military allegiance and jurisdiction and therefore sole citizenship of the United States and a Fourteenth Amendment "born . . . citizen of the United States" who is born with divided allegiance, jurisdiction, and citizenship.

If any “born citizen,” “citizen at birth,” “citizen by birth” or “citizen from birth” does not satisfy the “natural born Citizen” definition, we cannot simply amend Article II by changing the definition of a “natural born Citizen” to one of these phrases. In other words, we cannot just take an Article II “Citizen of the United States” as defined by the Fourteenth Amendment or Congressional Act and convert that person into an Article II “natural born Citizen” as defined by American common law which has its basis in natural law and the law of nations. Rather, if one is going to maintain that he or she is an Article II “natural born Citizen,” then let he or she prove it under the time-honored definition of the clause. Let us not accept that the definition of an Article II “natural born Citizen” has somehow been changed to some other phrase such as a “citizen at birth” or “citizen by birth” without seeing any evidence of that ever happening. Let us not because of political expediency take someone who may at best be a Fourteenth Amendment “citizen of the United States” and convert that person into an Article II “natural born Citizen.” The burden of proof is on those seeking to change the Constitution and its original and long-standing definition of a “natural born Citizen,” not on those who are fighting to preserve, protect, and defend them.

So as we can see, our U.S. Supreme Court has given the exact “natural born Citizen” clause only one definition and that is a child born in the country to citizen parents. See Minor v. Happersett (1875); U.S. v. Wong Kim Ark (1898). This means that only a child born in the United States to two parents who are either Article II “natural born Citizens” or Fourteenth Amendment or statutory “born or naturalized . . . citizens of the United States” is an Article II “natural born Citizen.” This is the consensus opinion of a “natural born Citizen” as provided by our U.S. Supreme Court and Congress since the beginning of our nation. Consequently, a “Citizen of the United States” is any citizen so made by Act of Congress, treaty, or other positive law such as the Fourteenth Amendment. Indeed, while a Fourteenth Amendment “born . . . citizen of the United States” may be born with dual and divided allegiance to the United States, an Article II “natural born Citizen” is born only within the sole, full, complete, and undivided legal, political, and military allegiance and jurisdiction of and sole citizenship in the United States.

A “natural born Citizen” includes all those who are born with no foreign allegiance and excludes all those who are born with any foreign allegiance. On the other hand, a “citizen,” “native-born citizen,” “born Citizen,” or “citizen of the United States” who is not a “natural born Citizen” can be born with foreign allegiance but through positive law is nevertheless naturalized to be a “citizen of the United States” either at birth or after birth. Hence, a “natural born Citizen” has only one definition which was recognized during the Founding and which has been confirmed by our U.S. Supreme Court, Congress, and other historical sources. That definition is a child born in the country to citizen parents. Satisfying this definition removes from the child foreign allegiance which may attach by birth on foreign soil (by jus soli) or by birth to one or two foreign parents (by jus sanguinis). It is by satisfying this definition that one is born with no foreign allegiance and thus attached and loyal only to the United States.  Consequently, all “natural born Citizen[s]” are “citizens of the United States,” but not all “citizens of the United States” are “natural born Citizen[s].” Therefore, any “born . . . citizen of the United States” under the Fourteenth Amendment must still show that he or she satisfies the American common law definition of a “natural born Citizen” in order to be considered a “natural born Citizen.” Failing to make that showing, a “born” or “native born” citizen under the Fourteenth Amendment is just that but not an Article II “natural born Citizen.”

Judge Malihi has not made any findings of fact concerning the question of where Obama was born. Obama the candidate wants to be President again. Under Article II, Section 1, Clause 5, Obama has the burden of proof to conclusively prove that he is a “natural born Citizen.” As part of that burden, he has to conclusively prove that he was born in the United States. Neither Obama nor his attorney appeared at the hearing to present any evidence on the issue. Judge Malihi found the plaintiffs’ documentary evidence to be insufficient for whatever purposes it could have been used. Nor did he find that that evidence, which includes a paper copy of the computer scan of Obama’s alleged long form birth certificate, to be sufficient to prove that Obama was born in Hawaii. We can see from the exact words used by Judge Malihi that Obama has failed to carry his burden to conclusively prove that he was born in the United States. Judge Malihi said that he “considered” that Obama was born in the United States. We do not know what this means and it appears that Judge Malihi attempts to avoid the issue of whether he found that Obama was born in the United States. Clearly, “considered” does not mean found. Since Obama failed to carry his burden of proof as to his place of birth and Judge Malihi’s decision actually confirms that fact, the Georgia Secretary of State should reject Judge Malihi’s decision and rule on his own that Obama not be placed on the primary ballot.

Should the Georgia Secretary of State find that there is sufficient evidence in the record which conclusively shows that Obama was born in the United States, then he can still find that Obama is still not a “natural born Citizen.” We have seen that Judge Malihi relies on Ankeny which is bad law when it comes to the definition of an Article II “natural born Citizen.” He fails in not giving controlling effect to the U.S. Supreme Court case of Minor which clearly defined a “natural born citizen.” Finally, Judge Malihi incorrectly reads Wong Kim Ark and gives controlling effect to that incorrect reading. The time-honored American common law definition of the clause is a child born in the country to citizen parents. There is no dispute that Obama was born to a non-U.S. citizen father (his father was a British citizen) and U.S. citizen mother. Being born to an alien father, Obama also inherited his father’s British citizenship under the British Nationality Act 1948. All this demonstrates that Obama was not born in the full and complete legal, political, and military allegiance and jurisdiction of the United States. He is therefore not an Article II “natural born Citizen” and cannot be placed on the Georgia primary ballot.

Mario Apuzzo, Esq.
February 3, 2012
http://puzo1.blogspot.com/
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Mario Apuzzo, Esq.
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