The US 9th Circuit Court of Appeals has consolidated separate appeals filed by attorney Gary Kreep on behalf of Markham Robinson and Wiley Drake; and Orly Taitz on behalf of Pamela Barnett, Alan Keyes, et al. The February 12, 2010, order says:
The court sua sponte consolidates appeal nos. 09-56827 and 10-55084. Appeal nos. 09-56827 and 10-55084 are consolidated. The briefing schedule for the consolidated appeals is as follows: the opening briefs and excerpts of record are due June 28, 2010; the consolidated answering brief is due July 28, 2010; and the optional reply briefs are due within 14 days after service of the answering brief. All parties on a side are encouraged to join in a single brief to the greatest extent practicable.
Somehow the repeated refusal of the courts to allow Kreep and Taitz to separate their cases reminds me of the classic 1958 movie, The Defiant Ones.
Did you know? The name of Tatiz’s dental practice is “Appealing Dentistry.”
LOL! Appalling Dentistry I should say!
Because Drake filed his notice of appeal first, it has the lower number, which means case will generally be captioned Drake v. Obama.
Somewhere, Taitz is threatening to sue/indict the 9th Circuit.
I love that one actor in The Defiant Ones is Sidney Poitier, because Poitier is is actually Obama’s father!
Consolidation is a good idea. Keep all the crazy in one place, I say.
Far be it from me to say that certain strains of Republican can be a little “economical” and “flexible” with both the truth and their politics when it comes to the Constitution…..However.
http://news.google.com/newspapers?nid=1683&dat=20031020&id=fboaAAAAIBAJ&sjid=cEUEAAAAIBAJ&pg=2425,7435509
For all the nice little Birthistani’s who hold that Article II is sacred…..Didn’t stop Orrin Hatch from proposing a 28th Amemdment to clear away that stuffy old archaic idea so Arnie could run for Prez…..
Irony of Ironies, the name of said proposal….”Equal Opportunity to Govern Amendment”
You made the OC Weekly:
http://blogs.ocweekly.com/navelgazing/the-hilarious-haters/birther-enemies-forced-to-work/
“Birther-watcher Dr. Conspiracy, though, points out that last month the court consolidated the two lawsuits:”
Another interesting poll…I think we can see why the GOP have still not repudiated the birthers…They will support anything that they think will harm Obama…But so far it is not working like they had hoped…And that is driving them crazy…
http://news.yahoo.com/s/ap/20100310/ap_on_go_pr_wh/us_poll_obama_and_congress;_ylt=AuERv7qZ72DOB4N2cUbRNOLBF4l4;_ylu=X3oDMTNmc3BudG90BGFzc2V0A2FwLzIwMTAwMzEwL3VzX3BvbGxfb2JhbWFfYW5kX2NvbmdyZXNzBGNjb2RlA21vc3Rwb3B1bGFyBGNwb3MDMgRwb3MDMgRzZWMDeW5fdG9wX3N0b3JpZXMEc2xrA2FwLWdma3BvbGxvYg–
“WASHINGTON – Americans have come to detest Congress ever more deeply as it nears the end of a nasty fight over health care. But more than half still back President Barack Obama, a bright spot for a Democratic Party counting on its leader to help stave off expected losses in elections this fall.
The latest Associated Press-GfK poll found that fewer people approve of Congress than at any point in Obama’s presidency. Support has dropped significantly since January to a dismal 22 percent as the health care debate has roiled Capitol Hill. Neither Republicans nor Democrats are safe; half of all people say they want to fire their congressman.
Conversely, Obama’s job-performance standing is holding fairly steady at 53 percent. And over the past two months, the Democrat has gained ground on national security issues, specifically the subsiding Iraq war and the escalating Afghanistan war, as he has spent most of his time — at least publicly — on domestic matters like the economy and health care. On those issues, he still has the support of about half the people.”
A Phil Berg sighting…I guess he is still down with the so called 9/11 truthers…
http://ohforgoodnesssake.com/?p=8228
“I wasn’t sure if he kept up with the 9/11 Truther movement, busy as he is with Birther law, but here he is at a 9/11 convention in Valley Forge, Pennsylvania this past weekend.”
“The Nightline cameras just caught a glimpse of Phil Berg at around 03:43, in the background at center.”
That’s a great catch, and it led to me to find Hatch’s tesimony before the Senate Committee on the Judiciary in October, 2004, when he said this:
What is a natural born citizen? Clearly, someone born in the United States or one of its territories is a natural born citizen. But a child who is adopted from a foreign country to American parents in the United States is not eligible for the presidency. That does not seem fair or right to me.
Similarly, it is unclear whether a child born to U.S. servicemen overseas would be eligible. Most academics believe that these individuals would be eligible for the Presidency, but I note that some academic scholars disagree. A recent article in Green Bag, a journal that specializes in Constitutional law, quotes an 1898 Supreme Court case that the natural born citizen clause “was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.”
http://judiciary.senate.gov/hearings/testimony.cfm?id=1326&wit_id=51
Are the sataments of Sen. Hatch the “Law of the Land”?
Quoting the dissenting opinion of Justice Curtis in Scott v. Sanford is an act of desperation. Getting the date wrong is the result of laziness.
“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.” Minor v. Happersett
Vattel’s definition, which goes along with the opinion above was made part of the “common law” in 1764.
The closest the Court ever came to saying that the child of an alien is a natural born citizen is that such child is “as much a citizen as the natural born child of a citizen”. Isn’t a naturalized citizen “as much a citizen as the natural born child of a citizen”? Do we have citizens that are more or less citizens than others?
Whether Obama (the child of an alien father) is a natural-born citizen or not has never been determined by the Supreme Court of the United States. There is no case law that answers the question.
Just as there is no case law that requires states to comply with the Second Amendment, the Court has not yet answered the question. Both sides have arrived at their own conclusions. Like the determination of NBC, the opinion of either side is not legally binding. Both sides will continue to claim that their determination is correct. One side wants the Court to rule upon the question. The other side does not.
Incorrect. They have already ruled Obama is eligible. Here is a photo of them delivering their opinion.
http://www.blogcdn.com/www.politicsdaily.com/media/2009/01/thomas.jpg
Questions: “Are the sataments of Sen. Hatch the “Law of the Land”?”
Of course not- but Sen. Hatch was stating the commonly understood definition of NBC- the one I- and probably Sen. Hatch was taught in our civics classes growing up.
“Vattel’s definition, which goes along with the opinion above was made part of the “common law” in 1764″
Can you show how this happened? I am not even sure how something is made part of common law. Seriously- if you have some link to a real source on this rather than Mario’s ramblings I would like to read it.
“Both sides will continue to claim that their determination is correct.”
Except one side consists of the 66 million voters who elected President Obama. The other side consists of a few malcontents who are insisting that President Obama can’t have been eligible.
This is like saying that there are two sides to the flat earth debate and until the Supreme Court rules we won’t know the answer.
Sorry Questions but you’re wrong. Vattel’s use of the phrase Natural Born Citizen did not appear in any translations until after the founding of the constitution. Natural Born Citizen most likely came from English Common Law which uses Jus Soli. Furthermore to rehash old stuff. The Wong Kim Ark further iterated that being born on US Soil makes one native born.
Justice Curtis opinion was correct as the Dred Scott case decision was overturned by subsequent rulings.
Jus soli has been upheld in multiple court rulings. There is also the case of McCreery’s Lessee v. Somerville, 22 U.S. 9 Wheat. 354 354 (1824) in which the following was stated:
W. McCreery left at his death no children, but a brother, Ralph McCreery, a native of Ireland, who is still living and who has not been naturalized, and three nieces, Letitia Barwell, Jane McCreery, and Isabella McCreery, the latter being the lessor of the plaintiff, who are the daughters of the said Ralph, and native born citizens of the United States.
The key right there. The decendents of Ralph who were born in the US to a father who was not a citizen are considered native born citizens. The court over the years have used Native Born and Natural Born interchangeably.
Just goes to show how completely underinformed the birthers are.
First, Dred Scott is the most reviled case in the history of the nation. Quoting from the dissent is really the only acceptable use of the case.
Second, as Horace Gray explains, on this issue, “no different opinion was expressed or intimated by any of the other judges.”
The dissent doesn’t dispute this, it quotes Chief Justice Taney who stated there were two different types of citizen – state and national and analogized a third, someone who could be an international citizen.
Are you arguing that Obama isn’t a citizen? Is only a state citizen? Only an international citizen?
Instead of recycling ancient arguments considered and found wanting in Wong Kim Ark, why don’t you read a review Dred Scott written in 1857.
Lying through omission, I see. The paragraph you quote does continue, you know:
As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.
Why don’t you read the whole paragraph?
Justice Gray is quoting Horace Binney:
Binney identifies two ways to become a citizen, and two only.
Birth in the country = natural born citizen!
Citizenship by Congressional act = NOT natural born citizen.
Did Congress bestow Obama’s citizenship on him? No. He got it because “The common law principle of allegiance was the law of all the States at the time of the Revolution and at the adoption of the Constitution”
The decision spends many, many pages on the definition of allegiance. Later Gray quotes Binney again, but pairs him with Lord Coke:
If an alien has a child in England, that child becomes a natural born subject. If an alien has a child in the United States, that child becomes a natural born citizen – by operation of the same principle!
Then the founders were complete morons, weren’t they?
They didn’t once say that Vattel’s definition of citizenship should replace English law on the subject. If they’d been smarter than a doorknob, they might have realized that every single colony had adopted laws that said exactly that – born here = natural born citizen.
If they’d been smarter than a hammer, they might have noticed that they had cited to Lord Coke’s Calvin’s Case innumerable times, and that since that case says an alien has enough allegiance to the country he’s in to create a natural born subject, one could get the impression that the founders might have understood what they were reading.
If they had been smarter than a rock, they might have realized that “natural born” was used in English law, but that “indigenes” had not been translated into English yet as “natural born.” Maybe they would have spent a few minutes, a few words in the tens of thousands of pages they wrote in their lifetimes, explaining that they’d rejected English law and supplanted with this Swiss philosopher.
If they’d been smarter than a turnip, they might have noticed that less than 15 years after they had written the Constitution, legal writers were explaining that nothing had changed – born here = natural born citizen. No founder thought to issue a correction?
If your kid got killed, you’d go out and find the best attorney money can buy to prosecute the case.
When Al Gore contested the 2000 election, he got David Boies, one of the best litigators in the world. Bush got Ted Olsen, who was later the solicitor general of the nation.
When you have a personal stake in the outcome, you bring the best legal minds and best legal arguments to bear in contesting the issues.
Why do you bring the absolute best? I’ve got two words for you: Collateral Estoppel.
You don’t get more than one bite at the apple, Slamdunk. Once a court has decided the issue in a final manner, it cannot be re-litigated when you get better attorneys.
Standing, then, doesn’t protect Obama. Standing protects the birthers. Obviously, Obama would prefer to spend two-hundred dollars to get the case tossed before getting into discovery, but a close second-place outcome would be to have the case litigated fully.
You want to go into battle with Orly Taitz, Mario Apuzzo and Leo Donofrio? Obama would love that outcome.
Has Orly filed a single paper with any court that wasn’t first bounced for failing to comply with basic local rules? Like signing the filing? Leo Donofrio, who dropped out of the legal practice to pursue a poker career less lucrative than most first year associates make at a big firm. Mario Apuzzo is the best of the bunch, and he’s a life-long DUI lawyer, with little to no Constitutional law experience. An example of the rampant malpractice that is occurring even in his learned filings – a verified complaint that alleges a non-existent travel ban to Pakistan!
Be careful what you wish for, Slamdunk, I doubt you’ll get it, but I, for one, won’t mind if you do.
Because while you think we’ve got an undecided issue with two equally matched sides, well, I keep suggesting that you read the briefs in Wong Kim Ark. Your arguments were presented to the Supreme Court in almost exactly the same form 100 years ago. There is nothing to suggest the outcome will be any different. Especially if you’ve got the gang that can’t sign their name as your lawyers going up against the DOJ!
Dr. Fukino Guilty of Perjury???
http://www.thepostemail.com/2010/03/09/hi-director-of-department-of-health-perjures-herself-before-hi-senate-committee/comment-page-1/#comment-6240
Dr. Fukino said 50+ inquiries a week about Obama’s birth certificate and Post and E-mail thinks that refers to UIPA requests only.
Fail!
Kornhaber follows us on Twitter.
Gah. It’s actually painfully stupid at that place – like reading the writings of a mendacious duck.
Mike, the P&E is an insult to ducks everywhere…Dr Fukino did not commit anything. “John” Charlton the Charlatan has a hard on to try and discredit her so that he can attempt to cast doubt on her infamous statement where she declares that “Barack Obama was BORN in Hawaii”. There is nothing to see here…Just the ranting of our old friend BZ and her ignorant sidekick Miss Tickly getting upset that the HI DoH is refusing to engage in anymore of their time wasting fishing expeditions…
A scary post from Orly’s site via OFGS….It seems her so called followers are now suggesting threatening Judge Lamberth’s grandkids? You need to go to the link to see for yourself…These so called patriots are going way over the line…I am sure Orly will scrub it as soon as people notice the post….
http://ohforgoodnesssake.com/?p=8239
Hatch’s quotation, as well as those of many others, appear on the Obama Conspiracy Theories Great Mother of All Natural Born Citizen Quotation pages.
Wow. There are no words for that level of insanity.
I’d point out that Orrin Hatch is a lawyer with long-standing service on the Senate Judiciary Committee.
Yet another excellent explanation from Greg — one of the best reasons to follow this blog. Thank you again for your insight into the law!
Big fan…
I love how their retalliation plan is to cast NO DOUBT AT ALL as to who is a vexatious requestor and who isn’t. Birther logic: Flood ’em with meaningless requests, that’ll show ’em.
I will bet good money that nobody ever deemed a vexatius anything believes that they are being anything but thorough, and will never understand how others view them.
I don’t know why I bother to post. Greg refutes everything more thoroughly and clearly than anything I say.
I think from now on I will just say- did you read Greg?
Threadjack:
Butterdezillion is talking about you again:
http://butterdezillion.wordpress.com/2010/03/10/dr-conspiracy-on-birth-certificates/#comment-217
Nowt goes in the comment fields without having been vetted and passed for Orly’ish acceptance.
As an exercise, I’ve tried to post innocuous stuff before and unless you hit at least a 7 in Outlandish and 8 in Barking Mad or a 9 in Orly Pandering it never gets posted.
Questions says
Are the sataments of Sen. Hatch the “Law of the Land”?
I never claimed that a statement by Senator Hatch made what he said the law of the land.
The point is that he was expressing the general understanding of what constitutes a natural-born citizen. At the time he was the Chairman of the Senate Judiciary Committee. Not a single Senator on the committee expressed a contrary view.
Your claims about Vattel are laughable. There is no record of Vattel’s name ever coming up during the debates on the Constitution. Peruse respected legal texts such as Lawrence M. Friedman’s “A History of American Law” and you will find multiple references to Blackstone and zero references to Vattel.
Greg,
Your whole dissertation on English common law is irrelevant. Why do you fail to understand that the Founders were not interested in English common law when it came to national issues which included citizenship?
Other than the Wong Kim Ark which was written in 1898, you cannot cite one United States Supreme Court case that defined a “natural born Citizen” by using the language of the English common law. I challenge you to do it. Provide your citations.
Wong Kim Ark did not even consider that the Founders were writing on a new slate after just going through a Revolution. Justice Gray acts as thought the Framers were somehow in love with the English common law. There is so much material which shows that Justice Gray is simply wrong.
You can fool some unknowing people with your explanations but not someone who has taken the time to study the history.
Also, you are going to have to do better than your ridiculous travel bans. By the way, I’m still waiting for you or any of your buddies to tell me with what passport Obama traveled to Pakistan. I need solid evidence and not some conjecture or wisecrack.
“By the way, I’m still waiting for you or any of your buddies to tell me with what passport Obama traveled to Pakistan.”
My contacts in the Mossad are sitting on some real dirt. I can’t tell you everything, but it involves vegetables and Barbie dolls.
Gee Mario, while I don’t have Obama’s passport records (nor do I care, because really, they are as irrelevant to anything meaningful here as would be Bush or Clinton’s passports)…
…the default assumption is that any of these folks, as US Citizens (unless you have PROOF OF OTHERWISE), would have a US Passport.
Therefore, the default assumption is that Obama traveled to Pakistan on a US Passport, just as any other US Citizen would – *Duh!*
It is not up to us to provide evidence of the default. That is the starting point based on common reason.
It is up to folks like you, who try to assert otherwise to provide some credible, tangible evidence that he had anything other than a US Passport and was anything other than a US Citizen.
The burden of proof is on the accuser, which is you.
Unsubstantiated, speculative fantasies don’t count in the real world.
So far, all you’ve provided is, at best, meaningless speculation and misinterpreted misleading misreadings of law.
You’ve got zilch. And the courts have rewarded you for such with zilch in results for your efforts. Simple as that.
G,
You answer is pathetic. Where is the strenght of your cause. How do you expect to get the respect of the nation and the world with such answers. Your answers are good for defending a flim-flam man but not for defending the President of the United States.
Mario: I highly recommend putting Kahlua in your coffee. Good grief, man.
misha,
When I lived in Nepal we used the vegetables quite often. Then they shipped in a truck-load of Barbie Dolls and they had to shut down the operation. We followed a tortuous path home but we did make it. I am glad you understand. Please say hello to Nickie.
Mario: Is my answer pathetic, funny or die?
Remember, I’ll be here all week. Don’t forget to tip your waitress, and drive safely.
“Please say hello to Nickie.”
No, it’s Chuckie.
misha,
The people drank their coffee with Kahlua right before WWI and WWII started.
misha,
Don’t tell me you still have a crush on Chuckie?
“The people drank their coffee with Kahlua right before WWI and WWII started.”
The Kaiser and
SchicklgruberHitler drank Kahlua in their coffee?!Can you prove it, or is this conjecture like everything else you wrote?
Mario-You are showing your complete ignorance. Obama (Codename: Blacksmoke) was probably the the most valuable field agent the CIA had in the early 80s. He was tasked with running the operation to support the Afghan Mujahedin in their struggle against the Soviet Union, based on the fluent Farsi he learned in Indonesia. His mission was personally approved by our ally, General Zia.
Of course he didn’t use a passport. He was flown to Islamabad on a military plane and whisked straight to Pakistani InterService Intelligence (ISI) headquarters. They took him to Peshawar in a military convoy and smuggled him over the border dressed as a woman in a burka.
Sheesh, you are ignorant. You need to get to the movies more.
Scientist: who told you? Whoever spilled the beans better watch out. Remember Karen Silkwood…
Scientist,
This is a true story. My uncle escaped from a Nazi concentration camp dressed as a woman.
ROTFLMAO! *Waaah* Gee Mario, your response sounds like nothing more than a spoiled child whining and crying when someone called him out for his bad behavior and failures.
Your response is what shows you’ve got NOTHING!
The President seems to be doing just fine without my defense. The Birthers including you – eh, not so much.
All you have on your record on this is complete & utter failure and the deserved mockery that comes with it.
Other than that you got nothing, which is the real reason you are mad. You’ve got nothing and you’ve been called out on it and all you can do is stop your feet and pout, because that is all you’ve got.
“Respect of the Nation”…LOL? What kind of crazy talk is that? I’m just calling you out on a blog. I’m not the fool wasting my time filing frivolous cases based on nothing but fear/hate based fantasy – that’s you, dear Mario!
My “role” in regards to the President was to vote, which I did. As I don’t have any problems with the credibility or eligibility of the President whatsoever at all, I don’t have to do anything until the next election.
What you fail to get is I don’t have to do anything to defend the President. The default position is that he is President and there is really nothing you can do about that until 2012…and even then there is a good chance he’ll end up winning re-election and you’ll just have to grit your teeth and bare it until January 2017.
Sorry Mario, it is just as simple as that. Deal with it and stop whining like a spoiled baby who can’t get their way.
For someone who is “supposed” to be a laywer, you don’t seem to understand the whole point that the burden of proof is on the accuser.
I’m going to give you the benefit of the doubt that your utter inability to get that simple basic fact is because you are being disingenuous in defense of your case and your client. Because the only other conclusion anyone could draw is that you must be completely incompetent and suck at even basic understanding of your own profession.
Therefore, the only one who’s got to worry about jeopardizing their “respect” is folks like you who’ve thrown your lot in with pursuing such foolish nonsense.
The sad reality is that all you have achieved and all
that you will ever achieve out of this little adventure of yours is the notoriety of looking like a fool, damaging your own “national reputation” and at best nothing but utter failure in the courts. When I say at best, I’m being kind.
So far, you’ve not completely dropped off into looney-land like some of your fellow birthers, but if you chose to follow their bizarre and bad behavior, you might be able to get yourself sanctions, reprimands or even disbarment. So, if that is the true goal of the birthers, then hey, follow Orly down that rabbit hole.
But if you care about salvaging what little credibility and reputation you might have left, then I suggest you give it up and go back to chasing ambulances.
Mario, mind you, I am not a lawyer, or a first class legal scholar like yourself but….
“Other than the Wong Kim Ark which was written in 1898, you cannot cite one United States Supreme Court case that defined a “natural born Citizen” by using the language of the English common law.”
Thats like saying, other than the bullit that hit me I am fine. Wong Kim Ark is definitive and it is precedent. Everything other than Wong Kim Ark is speculation.
“Wong Kim Ark did not even consider that the Founders were writing on a new slate after just going through a Revolution”
And here is what your real argument here is-the Supreme Court was wrong in Wong Kim Ark.
As long as we are in agreement here- the Supreme Court defined NBC in Wong Kim Ark, but you think the Supreme Court was wrong.
That is a perfectly fine opinion. I think you are wrong, and there are no Constitutional authorities who agree with you, but go forward and tilt the windmill, just so long as we agree that President Obama meets the current definition of NBC.
Wow. If you are actually being sincere and honest on this Mario, then that must be a fascinating story and I’m glad to hear that your uncle was able to come up with a clever disguise and succeed in escaping such horrific conditions! Good for him!
My condolences that he even had to be subject to such conditions in the first place and I hope he and you didn’t lose any other family members in that atrocity.
“I need solid evidence and not some conjecture or wisecrack.”
I couldn’t agree with you more. Come back when you have some evidence.
@ G, Scientist and Mario:
My maternal grandfather’s parents perished in Treblinka. I was raised in my grandfather’s house – see the DVD Lies My Father Told Me.
He never got over it, and a cloud hung over the household. My best friend in college, Ukrainian Catholic, was raised by survivors. His mother survived Auschwitz, and his father survived the Gestapo. He told me his mother’s parents and sister were shot in front of her by the SS.
Remember, the Nazis considered Slavic people to be sub-human.
Mario – we have a common bond, so I will say this: I am disappointed that someone with your intellect, is susceptible to conspiracies swirling around Obama, or 9/11.
It is juvenile at best, and infantile at worst.
Just to give you an example, in Muslim countries, rumors swirl that the Mossad was behind 9/11. The basic rumor is the same; its flavor is changed for a different society. I’m surprised you haven’t realized this.
The basic rumor in Egypt for example is, ‘why didn’t Jews go to work on that day?’ I guess the Mossad forgot to call my five cousins. I guess the Mossad forgot to call me when I asked my employer for a transfer to the WTC branch, three months before.
Wow. Thanks for sharing misha. My heartfelt condolences to you, your family and everyone you also know who had to suffer or whose families were impacted by the horrors of the Nazi actions and their concentration camps.
My wife and I re-watched my DVD set of Schindler’s List again recently as well as the full 10-part showing of WWII in HD on the History Channel. I can’t think of a single event that was more terrible tragic and haunting than the Holocaust. Any time we see any show that addresses any aspect of that terrible event, we are haunted by sadness of the scope and inhumanity of it all for many weeks after.
It is depressing enough to realize that the Nazi’s were able to get away with such large scale inhumane treatment of fellow human beings during the 20th century. It is heartbreaking and painfully frustrating to know that there are still parts of the world where people kill each other for race, religion or tribe.
Let us all hope that enough people remember the lessons from that time to reduce such evil acts in the world and prevent anything of that scale of horror from ever happening again.
SFJeff,
Why do I see so many disclaimers on this site that the commentator are not lawyers. Do you expect to get a license to say things that are incorrect because you claim not to be a lawyer?
Why do you invent things by saying that Wong Kim Ark defined what a “natural born Citizen” is? Wong Kim Ark is no bullet. It is not definitive and it is no precedent for what an Article II “natural born Citizen” is. You are the one that is speculating and stretching things to make Wong Kim Ark controlling on the question of what an Article II “natural born Citizen” is.
I do not believe that Wong Kim Ark is wrong in how it defined a “natural born Citizen.” Do not conveniently put words into my mouth. Again, the decision did not define a “natural born Citizen.” I believe that it is wrong in how it mischaracterized what the Founders meant to do when it came to defining national citizenship. Justice Gray simply took the old English common law definition of “natural born subject” that prevailed during the colonies (which by the way under the English common law also included naturalized citizens) and used that to define a “modern” (in 1898) “citizen of the United States” under the 14th Amendment. The Framers would never have done that. Rather, they would have expected natural law and the law of nations to provide the rule of decision on defining the new national citizenship.
Justice Gray avoided natural law and the law of nations by saying that all the civilized nations were not in agreement as to its meaning. This was disingenuous given that the Framers and Founders used mostly Vattel to inform them on what the law of nations said. For the Founders, there was no split on what the law of nations said on defining “citizens” and “natural born citizens.” Even Chief Justice Marshall, one of the Founders, in The Venus (1814), relied upon Vattel to define domicile and national citizenship, defining a native or indigenes as a child born in the country to citizen parents. Clearly, this was the same definition that Pufendorf and Vattel gave to these citizens. Justice Gray did not even mention Chief Justice Marshall’s reliance on Vattel and all the previous Supreme Court cases that cited Vattel also. Justice Gray did not address why Minor said that there was no doubt that a “natural born Citizen” was a child born to citizen parents and that there was doubt whether a child born in the country to alien parents was even a citizen. Wong Kim Ark is the only U.S. Supreme Court case that up to that time relied upon English common law to define U.S. national citizenship. It stands alone in history on that score.
The Wong Kim Ark decision is also suspect given that Justice Gray was appointed to the U.S. Supreme Court by Chester Arthur who was born in 1829 presumably in the United States but, unknown to the public, to confirmed alien parents. “At the time of the birth of the future president, Arthur’s father was an Irish subject of the United Kingdom of Scottish descent, who naturalized as a U.S. citizen in 1843.” Cf. William Arthur’s certificate of naturalization, State of New York, 08-31-1843, in: The Chester A. Arthur Papers, Library of Congress, Washington. http://en.wikipedia.org/wiki/Chester_A._Arthur#cite_note-2. At that time, Chester Arthur’s U.S. born mother would have become a British subject when she married her British husband. The position that the Government took in 1898 in the Wong Kim Ark case that a child born in the U.S. to alien parents was not a U.S. citizen also existed in 1881 when Chester Arthur became Vice President and President. Some argue that Chester Arthur hid the fact that he was born to alien parents from the American people when he ran for Vice President. With Chester Arthur not even being a citizen of the United States when he was born, he surely was not eligible to be President. These indisputable facts put a cloud of suspicion over the Wong Kim Ark decision.
Mario Apuzzo: Your whole dissertation on English common law is irrelevant. Why do you fail to understand that the Founders were not interested in English common law when it came to national issues which included citizenship?
Other than the Wong Kim Ark which was written in 1898, you cannot cite one United States Supreme Court case that defined a “natural born Citizen” by using the language of the English common law. I challenge you to do it. Provide your citations
Just as a matter of curiosity, why wouldn’t a state court decision equally refute your notion (and notion is all it is) that “the Founders were not interested in English common law when it came to national issues which included citizenship”? Why insist on a Supreme Court case? And why insist on TWO Supreme Court cases (since Wong is one)?
Nevertheless, there is a simple answer to the challenge:
I suppose you will say, “oh but it doesn’t say English common law” but what other common law was there (please provide citations)? You could hardly say that it was “American common law” since America was just being created! And you know quite well that state laws at the time followed the British common law model.
Mario is in such a state of denial as to what the Courts had decided.
Fascinating… And now he is suddenly struggling with the concept of standing.
Hilarious, you can’t make this stuff up.
I hope someone forwards that post to the Judge in question, and to screen cap the entire page where it appears
Dr. Conspiracy,
You quote Minor v. Happersett as follows:
“Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.” Minor v. Happersett (1874).
I hope you are not attempting to say that in giving this “common law” definition of a “natural born Citizen,” that the Court used the English common law. You and your supporters here know darn well that no such definition existed in the English common law that prevailed in the colonies. Rather, what Minor put forth was American common law that had its genesis in natural law and the law of nations.
Dr. Conspiracy, I want to think that you are an honorable person but I am losing faith in you.
nbc,
Your comments are becoming like house flies.
Well, Mario, you know what they say about what attracts house flies now don’t you :->
Mario: do raindrops turn into maggots?
Seems that you have given up on reason… Instead you believe ad hominem is going to be far more effective.
Bravo Mario….
Of course your client still has no standing…
And yet court after court has rejected this position based on legal history, legislative history and lack of any evidence supporting your position.
Does that not bother you?… It must, otherwise you would not have tried to use ad hominems…
Pathetic…
nbc,
Your immaturity shines through your writings.
Mario Mario, have you any idea how funny that is coming from you.
ROTFL…
And I am not even referring to your court filings… That’s a unique level all by itself.
Mario: why do people cling to superstitions?
Mario Apuzzo: what Minor put forth was American common law
Well, by all means, cite the cases that establish this principle of American common law, because the cases I read say there is none.
Mario Apuzzo: Dr. Conspiracy, I want to think that you are an honorable person but I am losing faith in you.
I never had any such delusions about you.
Mario wrote:
“How do you expect to get the respect of the nation and the world with such answers.”
Speaking on behalf of the furriners I can assure you that it is the birthers who are bringing shame to your country, just like the John Birch society and other lunatics before them.
Also, will you please stop relying on Vattel for your argument? You sound like a broken record.
We have established conclusively that Vattel wrote that ONE parent citizen, the father, was enough to qualify an an indigene.
We have further established that a footnote in the later edition stated that, in the case of an unwed couple, the mother was enough.
This conclusively proves, without the shadow of a doubt, that the two-parents-citizens myth did not originate with Vattel, not does Vattel support it.
To deny this is simply being a liar and a cheat and a fraud.
Maybe because this is baseless, rank, speculation that is completely contradicted by the historical record?
Mario, the Founders quoted English common law.
The Founders quoted Calvin’s Case which defined natural born!
The Founders quoted Calvin’s Case and English Common Law in order to make the argument for their independence. They cited the part of Calvin’s case that dealt with allegiance and the duties of citizenship.
So, when you say that the Founders didn’t care about English common law when they were considering national issues like citizenship, you’re talking out of orifices not generally used for speech.
Why don’t you go back and actually read the history of the time, Mario. For example, Mario, you could read Charles Mullet’s, “Coke and the American Revolution,” published in 1932 in Economica (Nov. p. 457).
You cannot find a single Supreme Court case saying that the US rejected English Common Law for “national issues such as citizenship.”
You cannot find a single Founder saying that they rejected English Common Law for “national issues such as citizenship.”
You cannot find a single Founder explaining why they quoted the principle case of English Common Law on Citizenship to support their independence.
You cannot find a single Founder saying they were choosing Vattel’s definition of citizenship over Lord Coke’s.
You cannot find a single Founder explaining why, if they were choosing Vattel’s definition, they used a legal term, natural born, which had a specific and definite meaning exactly opposite to what they intended.
You cannot find a single Founder taking issue with Tucker and other legal scholars writing as early as 1803 that the US adopted English Common Law.
Mario, you haven’t read the history. You have barely read the cases you cite.
And, as to the travel ban, it just goes to show what your word is worth. Verified complaint, indeed!
You want evidence of what passport Obama traveled to Pakistan on? Why? What probable cause, heck, what reasonable suspicion suggests that he didn’t travel on a US passport?
You can’t get a warrant on baseless speculation. You can’t even file a case based on baseless speculation. What on earth would make you, a practicing attorney of 27 years, think your baseless speculation about Obama’s passport demands an answer?
There was no such definition in the English common law that prevailed in the colonies?
You claim to have read the history of the time, yet you make such a bald-faced lie. That is astounding behavior for someone with a law degree.
Tucker, 1803:
The Massachusetts Supreme Judicial Court also disagrees with you about a lack of common law :
Ainslee v. Martin
9 Mass. 454 1813
I’m sure you’ve read that case, right Mario. Since you are so familiar with the historical record.
Greg, Mario et al: Whenever I read these endless discussions on the Founders, Vattel, old court cases, etc., I am struck by how they miss what I see as the essentials of the matter. We live in a vastly different world from the Founders, Vattel and the 19th century Supreme Court. Science was held back for centuries by an excessive deference to the writings of Aristotle, Galen and other ancients. Only when scientists took their noses out of the ancient texts and began studying the real world around them did progress ensue.
Similarly, an excessive veneration of the Founders and their “intent” (even if we could know that perfectly, which we can’t) can only result in an ossified society incapable of meeting today’s challenges. The Founders were smart guys but there are plenty of living, breathing humans just as smart. Read the Founders or Vattel or whoever you like, but do so critically, with an eye to keeping what serves today’s world and rejecting the rest.
The bottom line is that the living breathing people of today have the right and the duty to interpret NBC or any other phrase for themselves, in a way that serves THEIR needs, not those of the past. That is what the voters did in 2008 and they had every right to do so. If the Founders or Vattel or Judge Gray would have disapproved of their choice, too bad. Life is for the living and let the dead bury the dead. And this may be a non-lawyer’s opinion, but if I read the court decisions so far, that, in a nutshell, is what the judges are saying as well.
That’s an excellent point. There are two ways of interpreting the Constitution – originalist and non-originalist.
I only argue about the originalist point of view because it is so obvious that Obama is a citizen under the non-originalist view. He won an election. The people have spoken. They were presented with the evidence of his father’s citizenship – he spoke about it in his autobiography, in his Senate campaign and in his 2004 DNC keynote, etc. – and voted him into office.
Personally, I’m a non-originalist. Contracts bind the parties who agreed to them, and we didn’t enter into a contract with the founders. Each generation enters into the social contract anew.
But, as a lawyer, it is more fun to flip someone’s argument. Okay, so let’s assume that we do live in an originalist society. You still lose because you don’t have a clue what the founders said!
Dr. Conspiracy says “I suppose you will say, “oh but it doesn’t say English common law” but what other common law was there (please provide citations)? You could hardly say that it was “American common law” since America was just being created! And you know quite well that state laws at the time followed the British common law model.”
You do know that the Articles of Confederation were ratified in 1781, don’t you?
As to common law; do you know that “common law” is judge-made law? Lord Mansfield in 1764 stated “that the law of nations, in its full extent, was part of the law of England”
Who is this Lord Mansfield character? He was made Lord Chief Justice in 1754.
You want to say they relied on the Common Law of England; go ahead.
For those who want to play the translation of the Law of Nations game, I’m sure you can show us the numerous complaints about the translation when the American version was published. What? No complaints were found? Are you going to tell us that one of the most popular legal references of the period received no complaints about the definition of Natural-Born Citizen?
HD, interesting. BZ still has the epic fail in regards to what exactly is required by the HI DoH and what information was actually received by “Ms. Tickly”…
Look at her post….
butterdezillion Says:
March 11, 2010 at 2:18 am | Reply
“Their administrative rules say it is to be provided as a standard copy of a birth certificate – either photocopied or transcribed with ink. To me that sounds like a paper document.
And Hawaii law says that they have to make available to the public all the forms that they use, together with the descriptions of the procedures they use to process the forms. They may well not have these things in their office, but if they don’t it’s because they are not abiding by their laws and rules.
The well had been poisoned long before I ever asked them for anything. Since Terri K got their admission that Obama’s BC has been amended, their answers have been nothing but stonewalling.”
BZ still believes that the HI DoH confirmed that the President’s birth information was amended. And as long as be believes in this piece of misinformation, then she won’t understand why the DoH is giving her as much information as they are allowed to give….
Greg: My problem is that by even arguing the originalist side, you dignify it. And I see birtherism as an extreme offshoot of originalism. Boil down the birther arguments and they esentially come down to this-“The Founders wouldn’t have wanted a man like Barck Obama as President”-whether because of his race, his father’s origins, his positions on the issues or 100 other reasons. The correct response in my view is twofold:
1. Who knows? Doubtless, if the Founders were alive today, some would support Obama and some would oppose him, just as they were divided on the issues of their own time.
2. More inportantly, who cares? They chose Presidenst for their time; those of us around today get to chose the ones for our time.
It’s really that simple. And for our friend “Questions” that applies double for you! The election is over! Stop trying to overturn the will of the people, you clown!
Laughable as usual. The law of nations never had the phrase natural born unti after the constitution was written. Vattel was not very popular and was more obscure than you guys pretend hes not. Lord Blackstone however has been quoted time and time again by the high court and the lower courts.
As with most birthers I see you take Lord Mansfield out of context and misquote him. The quote was taken from Triquet v Bath 3 Burr 1480 1481 where Lord Mansfield was quoting Lord Talbot who said in the full quote “That the law of nations, in its full extent, was part of the Law of England. – That the law of nations was to be collected from the practice of other different nations, and the authority of writers.” they werent talkng about Vattel’s book.
Are you seriously claiming that every time that someone says “Law of Nations” they mean Vattel’s law of nations?
So, when Blackstone writes a chapter called “Of Offenses Against the Law of Nations” he was referring to Vattel?
Blackstone doesn’t seem to be referring specifically to Vattel, does he? He seems to be referring to a system of rules.
And, Vattel based his Law of Nations on Christian Wolff’s book also named Law of Nations.
So, clearly, some people can say Law of Nations without meaning Vattel’s Law of Nations.
Look back at Blackstone’s definition of “Law of Nations” – rules agreed to universally.
Well, jus sanguinis in its weakest form, not to mention the 2-citizen-parent mutant you propose, wasn’t universally agreed on by nations at the writing of the 14th Amendment much less the Founding!
I really don’t understand why you think this helps you. The fact Wong Kim Ark is the only supreme court case that actually defined “natural born citizen” doesn’t lessen it’s impact. We have shown a multitude of lower courts rulings and early scholars supporting the English common law rule, as well as opinions single Justices.
Of course, no supreme court majority, nor any lower court majority at any level, has ever defined “natural born citizen” in accordance with your definition. We have seen your citations, and they don’t define “natural born.” All you have is one concurring opinion, one dissent and dicta stating that someone, somewhere had doubts about the meaning of “natural born” under the common law. Of course, you cannot find any early authority stating the common law required citizen parents, but you sting cling to that quote as what else do you have. Please provide us citations for the following if you want to convince anyone:
(1) Name one court at any level that says a natural born citizen has to have citizen parents. Show us the quote.
(2) Show one framer or other early authority of any kind that defined “naturl born” or “native” in accordance with Vattel. Doesn’t exist.
(3) Show any early authority that disputes that the English common law defined citizenship in America. Have you read Kent, Story, Rawle, Tucker and the multitude of early case law on the subject? Obviously not.
Blackstone essentially said the same thing as Mansfield, as did many early american authorities such as Rawle. What they meant was that the law of nations was incorporated as part of the common law in that it provided rules of decisions on issues of international law. Thus English and American courts would look to the treatises on the law of nations when addressing maritine disputes, war, treaty obligations and other issues of international law. It didn’t mean it superceded their own common law on domestic issues. Hence, we saw Justice Marshall look to the law of nations to determine the domicile of a citizen living in an enemy country. Cleary a question of international law. When defining an American citizen however, he used the common law definition of locality of birth. Similarly, we saw Justice Story appear to allude to an international rule when determining the status of a minor when a country divided in two during a revolution. Again, a subject appropraite for international law. However, when defining an American citizen at birth, he looked specifically to the English common law.
Questions says:
For those who want to play the translation of the Law of Nations game, I’m sure you can show us the numerous complaints about the translation when the American version was published. What? No complaints were found? Are you going to tell us that one of the most popular legal references of the period received no complaints about the definition of Natural-Born Citizen?
I’ve asked this before, but I never get a response, so I’ll try again. Mario, feel free to chime in.
If Vattel’s book was so popular and well-known, why is he not mentioned even once in the published debates on the Constitution? See “Debate on the Constitution,” (two volumes, Library of America). Number of references to Blackstone: 16. Number of references to Vattel: zero.
If Vattel was so influential on American law, why is he not mentioned even once in Lawrence M. Friedman’s “A History of American Law” (Simon and Schuster, 1973)? Number of references to Blackstone: 15. Number of references to Vattel: zero. Vattel’s book isn’t even listed in the bibliography (Blackstone’s is). Friedman’s book is still in print, and The American Journal of Legal History calls it “A matchless and unequaled primer for the novice, an invaluable reference source for the experienced scholar, and indeed, the first book that anyone possessing even a slight interest in American legal history should read.”
One would think that if Vattel had any significant influence on the Founders, a legal scholar such as Friedman would have noted it. But he, just like those who debated the Constitution more than 200 years ago, never mentions Vattel.
Then there is “The Oxford Companion to American Law” (Oxford University Press, 2002). Number of references to Blackstone: 30. Number of references to Vattel: zero. In fact, the book contains an entire article on Blackstone’s “Commentaries” but doesn’t even mention Vattel’s “Law of Nations.”
I must say that I find it remarkable that so many respected legal scholars seem to be so ignorant about how deeply the Founders were influenced by Vattel.
The truth is that no early authority appears to have looked to Vattel on the issue of citizenship at all. He just wasn’t relevant on the issue. The first connection seems to be Justice Daniel in 1857, seventy years afater the founding. After all this time, the birthers can seem to find an earlier reference. For Mario to be right you have to believe that the framers intended the Vattel definition, but used a term that didn’t exist in any version of Vattel but everyone would obviously connect to the English common law. Of course, no one in the convention ever mentioned Vattel or a requirement of parentage when debating the issue. Then, of course, they failed to tell anyone as all the early legal authority interpreted the phrase in accordance with the english common law or simply native birth. Gee, who should we believe, Mario or Kent, Story, Tucker, Rawle, Bovier, the Massachuesetts legislature and on and on. If the framers somehow connected the term “natural born” to Vattel, one would think some other legal authority in the early republic would connect such term to Vattel. We’re still waiting to see someone. Apparently, no one got the memo of this super secret meaning of an english common law term of art.
http://books.google.com/books?id=rIsNAAAAYAAJ&dq=The%20United%20States%20of%20America%3A%20a%20study%20in%20international%20organization&pg=PA439#v=onepage&q=Vattel&f=false
“It is therefore to be expected that, when terms of municipal law are found in the Constitution, they are to be understood in the sense in which they are used in Blackstone’s Commentaries; and, when the law of nations is referred to, that its principles are to be understood in the sense in which Vattel defined them.” –James Brown Scott (1920)
As I wrote yesterday, the FACT is that Obama IS President and WILL remain President, barring any accidents.
Like Greg, I’m incensed by Mario’s meretriciousness, but at the end of the day, we all know (and I suspect he does too) that he rails in vain.
What is your point. The law of nations is not referred to in the citizenship clause. In England, the american colonies at the time and in every other country on the planet at such time, citizenship was not determined by any rule of internatial law.
ballantine,
You rely on “Kent, Story, Rawle, Tucker and the multitude of early case law on the subject…” But Minor, a U.S. Supreme Court case, told us that there were “doubts” whether these other “authorities” were correct.
Citizenship is municipal law. It is NOT the “law of nations.”
Lassa Oppenheim, International law: a treatise. Vol 1, Longmans, Green and co., 1920
Questions, you guys are on the tiniest sliver of land when you claim that courts have not decided “natural born citizen” with respect to the President (and the President only). By contrast, there are dozens of cases saying explicitly that citizenship is municipal law, not the law of nations!
You want to rethink going down this road?
Another weakness of this particular argument is that Blackstone was also influential in the law of nations.
Thomas Lee (University of Chicago Law), “The Safe-Conduct Theory of the Alien Tort Statute.”
“ballantine,
You rely on “Kent, Story, Rawle, Tucker and the multitude of early case law on the subject…” But Minor, a U.S. Supreme Court case, told us that there were “doubts” whether these other “authorities” were correct.”
Mario,
Well, Wong says they are correct, and cites most of them. Minor does indeed say that there had been doubts, meaning some unnamed person or persons had doubt. Without telling us who had these doubts and what the doubts were, it is not useful authority. And, of course, Minor neither agrees nor disagrees with such doubt. What we do know is all the most influential scholars and well-know eary case law supports the english common law interpretation. Whoever had these doubts must not been very important as we can’t seem to find him.
Ballantine,
Like many lawyers, you seem to think that the government of the United States, at some point in time, adopted the common law of England. They never did that. In all states except Louisiana (which is based on the French civil code), the common law of England was adopted as the general law of the state, EXCEPT when a statute provides otherwise.
Most states adopted the common law of England by statute or constitutional provision, and when those cases were heard in the Supreme Court, the Court had to refer to English common law.
At no time has the Federal Judiciary been bound to the common law of England. If they had, we would be sudjects of the King, because that’s what the common law of England dictates.
And in the next sentence said it did not need to resolve the doubts.
Were there doubts? We know there were because someone brought a case in Lynch v. Clarke.
They lost.
But, by bringing the case, we know that at least one person had doubts. We don’t know that they were worthwhile or valid doubts.
In fact, since Lynch v. Clarke concluded it was the universal understanding of the legal profession, I think those doubts were clearly held by a tiny minority.
The Court is pretty clear that when defining terms in the Constitution, we look first to the English Common Law.
Your argument, in short, is that without telling anyone the Founders chose a term that had been used for 400 years, natural born, but defined it differently.
If you sign a contract that calls for me to deliver chickens to you, you can’t sue me saying that I should have delivered cows because some Swiss philosopher defines chickens as cows.
Questions,
I never said the the common law was adopted as a matter of federal law. There was actually a great debate in the early republic on this issue and ultimately the supreme court ruled that the federal government never adopted the common law. However, that does not mean that many provisions and terms from the common law were not incorporated into the constitution. It is simply a fact that the constitution is full of english common law terms of art and has always been interpreted by the supreme court in such manner, which is why blackstone is cited in so many consitutional decisions. According to Chief Justice Taft:
“The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Convention of the Thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.” Ex Parte Grossman, 267 U.S. 76, 108-09 (1925).
ballantine,
Wong Kim Ark only held that Wong was a 14th Amendment “citizen of the United States.” That holding does not help you because to be President, one has to be an Article II “natural born Citizen.”
Your attempt at getting around the “doubt” expressed by Minor is frivolous. You know that the Court said there were doubts. Whose doubt do you think that is? Clearly it is the Court’s doubt and no one else’s. You suggest that it was someone else’s doubt. The Court is interested in its own doubt not in anyone else’s and you know that.
The extent to which you will go to rape the Constitution and the intentions of the Founders for purposes of winning you little political game is incredile.
What’s amazing is that Mario’s audience thinks he’s come up with novel arguments. We didn’t adopt common law at the founding? Yeah, that was in the Wong Kim Ark briefs:
They cite Smith v. Alabama 124 U.S. 465, 478:
See also:
Moore v. the United States, 91 U.S. 270
Minor v. Happersett
Gardner v. Ward, 2 Mass. Rep. 244
Ainslee v. Martin, 9 Mass. 454
Questions, your arguments were floated by the U.S. more than 100 years ago in Wong Kim Ark and they were slaughtered then.
They haven’t gotten better with age. By contrast, as Ballantine’s quote of Ex Parte Grossman makes clear, you simply have an additional 100 years of precedent saying the exact same thing – when there’s an undefined Constitutional term, we interpret it in light of the English Common Law.
This from a clown who actually pretends that a court can order Congress (a co-equal branch of government) to investigate and impeach a President.
The FACT is that the people, not courts or Swiss writers, define who they think is qualified as President and Congress gets to ratify or refuse that choice. That is the end of the line. I challenge you to prove otherwise. $100 says you can’t.
Greg said “Your argument, in short, is that without telling anyone the Founders chose a term that had been used for 400 years, natural born, but defined it differently.”
No. My argument is that the term existed and was recognized as it was printed in the American version of the Law of Nations. You would have us believe that the 1796 American Edition was the first time anyone would have understood Vattel’s definition to refer to “Natural Born Citizens”, but you fail to provide us with any reference that would demonstrate such to have been contested. If the term Natural Born Citizen, as printed in the 1796 American Edition, was not what the Framers intended; why is there no dispute documented? I don’t think you would disagree that is the ONLY definition of “natural born citizen” to have existed at the time. This can be further demonstrated by the repeal of the Naturalization Act of 1790, and the words insertion of the words “For carrying into complete effect the power given by the constitution” in the Act of 1795. It is clear that Congress overstepped their authority in the first Act, and recognizing this, made it clear that the 1795 Act was as far as Congress had the power to go.
In short, you want us to believe that a new term was created at the Constitutional Convention, by merging other terms, but no discussion of such has been reported.
Do you think a translation doesn’t exist until after someone printed an American Edition? That would be ludicrous.
Vattel’s Law of Nations was the third most published legal reference in post-revolutionary war America.
Mario,
The fact the Wong’s discussion of “natural born citizen” is not the holding is clearly all you have. Unfortunately, the supreme court has never made a holding on the subject, so Wong is all we have, which is why the Ankeny court relied exclusively on it. However, the “natural born” analysis was necessary for the holding in that once the court decided that the 14th Amendment was declaratory of existing law, it needed to tell us what was the existing law under the original consitution.
As for Minor, in the English language when a someone says “there have been doubts” doesn’t mean “I have doubts.” The court is simply aknowledging that there was disagreement on the issue by someone and expressly declined to examine the issue. Even if the court said it had doubts, unless the court examined such doubts, it is not taking a position on the subject. You can keep spinning, but your analysis is dishonest. And of course, the discussion of “natural born” in Minor is just dicta as “natural born” status had nothing to do with the actual holding.
You know that WKA held that Wong was a citizen because natural born citizen had the same meaning as natural born subject.
Never heard the term “circuit split,” then?
If two justices doubt the outcome of a case, but six don’t doubt it, is it still good law, Mario?
Wong Kim Ark was a 6-2 decision that stated, as part of its reasoning that natural born citizen had the same meaning as natural born subject.
I imagine your client isn’t paying you, because presenting this stuff as legal argument borders on a material misrepresentation!
If it was so all-fired great, why wasn’t it #1?
“a co-equal branch of government”?
Ridiculous! We have no “co-equal” branches of our government. They are separate, but cannot be considered equal. That’s a myth promoted by modern judicial power grabs.
A court overturning an election 2 years after the fact would be the judicial power grab to end all judicial power grabs. As they used to say on the TV game show, “You are the weakest link, goodbye!”
So, the Founders knew of the term natural born subject, and they knew of the term natural born citizen – indigenes, but instead of picking a term about which there could be no confusion they choose natural born.
We know that there was a French version of Vattel at the writing of the Constitution. It said indigenes.
Why didn’t the Founders use “indigenes” or “indigenous?”
Since natural born was used universally in the colonies to mean born here, why didn’t the Founders warn the states that they were changing the meaning?
Blackstone was also pretty popular. I’m told that the Founders even mentioned him in the debates.
Lord Coke was referred to by at least one founder as “our legal oracle.” The founders referred to Calvin’s Case, written by Lord Coke, to argue for our independence, based on the reasoning in that case about allegiance. Allegiance being the keystone of natural-born subjectship in that case.
Can you find me a single founder quoting Vattel on citizenship?
Yes, this is a brand-new theory:
Abridgment of the Debates of Congress, from 1789 to 1856, p. 309, April 1834.
You can read it here.
You might want to familiarize yourself with the history of the United States. It can be helpful when debating the legal concepts here.
But of course there was a translation of The Law of Nations before the 1796 edition. It just didn’t have the word “natural”, “born” or”citizen” in it. there is an article comparing editions on this site.
The more times you go out on a limb, the more times you risk being wrong.
But Greg that would actually make them take time and effort and would undermine their whole argument
Questions,
You are not making sense. The term “natural born citizen” was not in the editions of Law of Nations that the framers had and such term was not a literal translation of the original french by the legal dictionaries of the time. Why would the framers dispute the 1896 translation when there is no evidence that anyone in America looked to Vattel on the issue of citizenship. You cannot cite one framer or early legal authority that looked to Vattel on citizenship, but you want us show that people disagreed with a translation of Vattel that had a different definition when you have no evidence that any framer read the later addition. Not much of an argument. Actually, it doesn’t appear that the 1896 translation was very popular, as the early citations of Vattel by the Supreme Court and other courts were the earlier definition. For example, The Venus in 1812 and Lynch v. Clark in 1844 cited the earlier versions which didn’t contain the term “natural born.” Accordingly, you have no evidence that anyone in the founding period read the 1896 version, as opposed to the earlier versions. These are really weak arguments.
Not only was the term natural born in common usage at the founding and meant only born here, citizen and subject were used interchangeably. Horace Gray explained when he criticized Dred Scott in 1857:
Not only did the Constitution of Massachusetts conflate the terms “citizen” and “subject,” the legislature in the founding period conflated the terms “natural born citizen” and “natural born subject” in its naturalization statutes on numerous occations, using such terms in identical contexts in nearly identical statutes. In addition, the same legislature in 1797 proposed an amendment to the US consitution that referred to the natural born citizenship clause of the US constition as being a provision that applied to natural born subjects. I guess the legislature of “one of the most populous and important of the original thirteen” states didn’t get the Vattel memo.
Now, when you say, “A court overturning an election 2 years after the fact …” are you referring to a Judicial writ to implement a Constitutional plan of succession where a duly elected VP is sworn in after the President is disqualified?
Of course, a court has no legal authority to issue any writ to implement a consitutionmal plan of succession. If the 25th amendment was interpreted to allow for the removal of a president for being ineligible, its terms clearly provide that it is the “Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide” that has the authority, not any court. Do you people ever get tired of making stuff up. And, the 25th amendment was adopted to apply to an actual physical disability after JFK was shot, as it dawned on people that the president could be disabled for a prolonged period. There is no authority that it would apply to the ineligibility of a foreign-born president. How many courts need to tell you that there is no standing or jurisdiction for any court to remove a sitting president before it sinks in?
You must have gotten a bad copy of the Constitution. The ones I’ve looked at don’t have any role for the Judiciary in either qualifying or disqualifying a President. That is left for Congress. Toy can read about it here.
http://www.usconstitution.net/const.html
ballantine,
You said: “As for Minor, in the English language when a someone says “there have been doubts” doesn’t mean “I have doubts.” The court is simply aknowledging that there was disagreement on the issue by someone and expressly declined to examine the issue. Even if the court said it had doubts, unless the court examined such doubts, it is not taking a position on the subject. You can keep spinning, but your analysis is dishonest.”
My response: The Court said that “[s]ome authorities” considered children born in the country as citizens without considering the condition of their parents. It is telling that the Court did not cite to any court case but rather only called these sources “some authorities.” The Supreme Court would not have referred to a court as “some authorities.”
At the same time, the Court did not say that “some authorities” have expressed doubt as to such a position. Hence, when the Court said “As to this class [children born in the country to alien parents] there have been doubts,” the Court was expressing that the courts held such doubt and not simply some “other authorities.” While the Court did not resolve the doubts regarding the citizenship status of children born in the country to alien parents, it did give us a definition of what a “natural born Citizen” was, a definition which to this day no other U.S. Supreme Court or constitutional amendment has changed.
You said: “And of course, the discussion of “natural born” in Minor is just dicta as “natural born” status had nothing to do with the actual holding.”
My response: I just love how you always state how Minor’s definition of a “natural born Citizen” is dicta and not controlling but then you also always tell us that Wong’s definition of a 14th Amendment “citizen of the United States” is the same thing as an Article II “natural born Citizen” and that even if you were right you do not have any problem with such pronoucement being dicta like you have with Minor’s definition of a “natural born Citizen.” A little consistency in your arguments would surely add to their soundness and to your credibility.
If you’re trolling, it’s a weak attempt; there is no judicial power to force Congress to do anything except as Constitutionally required and defined.
As moot said – trolling is a art. lrn2troll
Mario,
Not sure what point you are trying to make. I never said Wong’s definition of natural born was the holding. I was responding to your attempt to dismiss Wong by stating its defining of natural born was not the holding when, of course, no court including Minor has made a holding on the subject. However, Wong’s defining of such term was important to the holding as the court deemed it necessary to define existing law. Accordingly, the dissent also felt it necessary to discuss the meaning under the original constitution.
With respect to Minor, you can spin and spin all you want, but all the court says is “there have been doubts.” It takes no position on such doubts, it doesn’t say it was a majority position, it simply declines to address the issue. You can try to read whatever meaning into the use of the word “some” that you want, but you are reading in statements that are not in the opinion. Most people would understand that when a court declines to take any position on an issue and specifically declines to address whether a definition applies to a whole class of people, it is not defining such term with respect to such people. You know that very well, but you have no other authority to cite.
Finally, please show us where are these authorities that stated the common law required citizen parents. Please provide the citations. Can you name even one authority prior to Minor? Of course not. All you have is dicta stating that there were people who might support your definition and perhaps they are substantive authority, however, you just can’t find them. Too bad. We do have access to all the early court cases and influential legal scholars and there is no dispute amongst them as to what natural born citizen meant. If Minor had some other authority in mind, it doesn’t tell us who they are and they can’t be significant if we can’t find them.
Confusing sufficient and necessary clauses.
Yes, everyone born here to two-citizen parents is a citizen. Therefore, Ms. Minor is also a citizen.
But, Mario, saying “If A then B” does not mean ONLY if A then B!
Can you find me a court saying “Only if born to two citizens then natural born citizen?”
No.
One shouldn’t have to explain the difference between dicta, a statement wholly extraneous to the holding, and a subsidiary conclusion, to a lawyer who claims to have 27 years of practice.
Mario, Minor would still not get the right to vote if she were a naturalized citizen. Wong would not be a citizen if Natural born subject didn’t mean the same as natural born citizen.
It’s a pretty straightforward, almost mathematical decision, Mario.
1. If A then B.
2. If B then C.
3. If C then D.
4. A therefore D.
Number 2 above is not dicta. It’s not the holding of the case, but it is not dicta.
Here’s the reasoning of WKA:
1. For undefined terms in the Constitution, we look outside the Constitution including to English Common Law.
2. English Common Law says born here = natural born subject.
3. NBC = NBS (pp. 658-666)
4. We didn’t adopt the “law of nations” on citizenship because there was no law of nations on citizenship.
5. The 14th Amendment didn’t limit the rule.
6. The courts cannot limit citizenship for policy reasons.
7. Wong didn’t lose his citizenship by any action after his birth.
Therefore he’s a citizen.
You cannot read out number 3 above and have the decision make any sense.
Try it. Take out number 3 above and tell me how Wong becomes a citizen.
If Natural born subject is not the same term as natural born citizen, Mario, then all of the government’s arguments are left unaddressed.
If you cannot redline something out of a decision, it is not dicta. If it is a requisite element of the decision, it is not dicta.
“The extent to which you will go to rape the Constitution and the intentions of the Founders for purposes of winning you little political game is incredile.”
Are you out of your effing mind?! It’s people like you, Cheney, Bush, Gonzalez and Orly who are doing that.
Do you really think we are that stupid or naive to fall for your blandishments? Obama will be re-elected, and Cory Booker will follow. Better get used to it.
I can’t wait for Romney to pick Jindal as his running mate in ’12. Comedy gold.
Is is Constitutional to certify the election of an ineligible candidate? Even if the Congress didn’t know the candidate was ineligible or knew he was ineligible but did not raise an objection before the vote to certify the election?
It would seem to me the Court would have jurisdiction.
Great point Greg. Wong simply could not make the holding it did without defining natural born in the original consitution.
With respect to Minor, according to Mario’s logic, if a court said that persons born in New Jersey were definately American citizens, but that there have been doubts that people born in Pennsylvania were citizens, but it was declining to examine such doubts, Mario would claim that the court was defining citizenship as requiring New Jersey birth. Of course, the rest of the universe would realize that it was only defining citizenship with respect to persons born in new jersey and was taking no position as to people born in Pennsylvania. Duh. Pretty basic stuff.
The courts have said that whether Congress seats an obviously eligible person is not a political question, but the eligibility itself is a political question.
Powell v. McCormack.
Nope, once elected the courts have no place in whether or not the President is in fact eligible.
misha,
How blase’.
No, it would not. The original jurisdiction of the SCOTUS lies with cases affecting ambassadors and diplomats, and those to which a State is a party, none of which situations holds here.
Furthermore, it is clear from history and by common understanding that Presidents may be removed from office only by impeachment by Congress, or by a declaration of the VP and Cabinet (or some other body theoretically empowered by Congress to do so) of incapacity, which although only technically a lock on the ability to exercise Presidential powers amounts to the same thing, and even that requires Congressional approval.
So, in a word, no. The SCOTUS would not have jurisdiction – that is given exclusively and ultimately to Congress, even leaving aside the political question doctrine. If a theoretical President were declared unfit by reason of ineligibility, it would be for Congress to decide what to do.
Shorter argument greg:
Minor v happersett stated there are only two types of Citizens: Native born and naturalized. In the case of Wong Kim Ark they stated he became a citizen at of the united states at the time of his birth. That is the very definition of native born which is synonymous with natural born.
Further the McCreary case stated that the daughters of Ralph McCreary who were born in the United States were considered Native born citizens even though McCreary was born in Ireland and wasn’t a citizen by the time of their birth.
Birthers don’t know this, that’s why birthers keep trying with their futile attempts and it appears that swampmop is a birther and doesn’t know this either.
Dr. Conspiracy,
You are a real tough guy.
“How blase’.”
I’m not blasé about Glenn Beck raping and murdering a girl, in 1990.
You guys are pretty funny. Nobody else would try to claim that the federal courts would not have jurisdiction after Congress gave them jurisdiction.
That’s right! After the Hayes-Tilden election of 1876 there were claims of election fraud, but none of that fraud involved the President-Elect. What could they do? There was no impeachable offense, and all the details would not have been available until after the President took the oath of office. If the guy who took the oath did not come by his votes legally (by no fault of his own), how was this to be settled? In 1877 they attempted to enact a quo warranto statute. It wasn’t enacted until 1878. That statute granted quo warranto jurisdiction to all District Courts. In 1903 that statute was repealed and the District of COlumbia Quo Warranto statute was created. The qualifications of the President are set forth by the Constitution. It is not a matter if Congressional discretion. As such, it is clearly a matter for the judiciary to decide.
When you get to know why the statute was created in the first place, you’ll then find out how much discussion took place to ensure the constitutionality of the statute.
In between 1878 and 1903, Chester A. Arthur, son of an Irish immigrant, was elected Vice-President – and then assumed office after James Garfield’s assassination.
But he was white, so there’s no Question there.
Have you read any of the legislative history of the Hayes-Tilden aftermath?
NBC has:
Only a birther would ignore clear legislative history that stated in no uncertain terms that QW does not apply to the President!
Not according to all of the judges who have heard these cases. But you know better than the judges themselves, right?
Keep spouting nonsense and don’t forget to hit the PayPal button. I’m sure you believe your “attorneys” when they tell you Obama will be gone in 30 days -no, wait, 60-no, wait, 90 days-no wait, by Jan 2013.
Yawnnnnnn
You’re right that lots of discussion took place about the constitutionality of the statute. They appointed a commission to decide the issue and that commission decided there was no Constitutional way to give power to the courts to hear a quo warranto proceeding against the President.
Resolving Hayes Title to the Presidency
“As to the common law of nations, we thus have Dr. Franklin’s authority for the statement that the members of the Continental Congress referred to and accepted Vattel’s famous treatise, as the measure and standard of the duties of the colonies, soon to become free and independent States. We could, however, dispense with his authority, inasmuch as the common law of nations was then regarded as an intricate part of the common law of England, and adopted as a system by the adoption of the common law. For does not Blackstone inform us, in his Commentaries, that “the law of nations (whenever any question arises which is properly the object of its jurisdiction) is hereby adopted in its full extent by the common law, and is held to be a part of the law of the land.”
Questions: you forgot to throw in deVattel. C’mon, get with the program.
In reading the comments here (including my own), I’m struck by the Seinfeldian nature of this entire issue. It is, in fact, about nothing, because the natural born Citizen clause is at best a pointless anachronism and at worst a disgrace. Its purpose is supposed to be to protect the Presidency from some nebulous “foreign influence”. But let’s examine the facts and see whether it fulfills that goal:
1. It forbids the present governors of 2 large states from seeking the Presidency. Yet, whether you like them or hate them, does anyone seriously contend that Schwarzenneger is an Austrian agent or Granholm a nefarious Canadian mole? Does anyone think that if elected they would sell out the US because they were born somewhere else?
2. The NBC clause would not have forbidden actual agents of foreign powers like Aldrich Ames, John Walker, John Walker Lindh, or Adam Gadahn from the Presidency.
3. It does nothing about financial ties to foreign countries, which are far more worrisome than what passport a parent held. Look at the Bush family ties to Saudi Arabia and consider that during W’s presidency oil prices went from $30/barrel to $140. Did that benefit America or Saudi Arabia?
4. It treats the people as infants. Rather than saying it’s your country, people, so evaluate candidates and make intelligent decisions, it excludes certain people on an arbitrary accident of birth.
So, yes Barack Obama is by long accepted standards a natural born citizen. But even if some future President were not, what the hell difference would it make? They would be a good leader or a bad one based on what they did in office, not the circumstances of their birth.
Thanks for listening and have a good evening…
Blackstone also tells us that regardless of parental citizenship, being born in a country makes one a natural born citizen of that country.
When trying to provide the courts with Quo Warranto to try the title of the president Congress clearly rejected this proposal, stating that it was unconstitutional.
History my dear friend, history. It shows that Congress takes the Constitution seriously when it comes to the Presidency where the Constitution clearly provides who qualifies the President.
Well said.
Other than the quadrennial Presidential contest, the debate has little value, per se. Where it is salient, however, is in its parallels to other situations. I can think of only two – birthright citizenship/anchor babies and the fringe legal community.
The birthers are airing out tired arguments put forward by the anti-anchor baby minority and they’re doing a pretty good job of discrediting them. When the next anti-immigration goon trots out the standard misquotes of Bingham et. al., we’ll be ready.
Further, the birthers have a lot in common with the tax-evaders and white supremacists who argue that there is a mythical distinction between 14th Amendment citizens and natural born citizens.
Finally, I hope that the birthers’ futile charge against Obama finally puts an end to the attempts to get through the courts what cannot be achieved at the ballot box, at least at the Presidential level. The Judicial Watch’s “filegate” suit was dismissed 2 days ago after 14 years.
If you don’t like the President, don’t vote for him. The courts aren’t a vehicle for overturning elections you don’t like.
wonderful…
Questions: For does not Blackstone inform us, in his Commentaries, that “the law of nations (whenever any question arises which is properly the object of its jurisdiction) is hereby adopted in its full extent by the common law, and is held to be a part of the law of the land.”
For the benefit of the reader who is fed up with misinformation and fantasy dumped here by commenter Questions, the quotation above did actually come out of a book, and not off some birther blog (well that may the route by which it arrived). The book is The United States of America: a study in international organization by James Scott Brown.
One notes that the reference in Blackstone is not capitalized, suggesting that it is not a reference to de Vattel’s book. Further one notes that citizenship is not a subject of international law, and hence is not “properly its jurisdiction.” Even de Vattel himself states that citizenship is a local matter (§ 215). It is well known and properly acknowledged that de Vattel’s treatise was influential in the area of international relations; however, it is equally well known and properly acknowledged that de Vattel was not influential when it came to defining citizenship.
The reader would do well to continue reading:
I do not know of any framer of the Constitution educated in Switzerland, although I do know of some educated in England (e.g. John Rutledge). And further, the colonial laws which have been preserved for us universally declare that citizenship is determined by place of birth, and sometimes extended to the children of citizens born elsewhere.
In 1901, Congress specifically authorized the United States District Court for the District of Columbia to issue quo warranto in the name of the United States. Act of March 3, 1901, 31 Stat. 1419, Title 16, Section 1601 of the D.C.Code (1940). However, this grant is strictly limited and is confined solely to situations involving franchises and public offices held within the District of Columbia. There is no other specific statutory provision vesting original jurisdiction in the district courts in quo warranto actions.
Which excludes the office of the presidency for obvious reasons.
Mario Apuzzo: You are a real tough guy.
You have to be in this business.
Mario Apuzzo: I just love how you always state how Minor’s definition of a “natural born Citizen” is dicta…
You confuse “definition” with “sufficient condition”.
And citizenship is something each country defines for itself, and hence not the subject of international law (the law of nations).
Of course, the alternative that somehow ‘Natural law’ or Law of Nations decides who are citizens runs counter to what this country stands for.
It will probably take a while for Mario to comprehend this. Probably after he figures out the Constitutional concept of Standing.
Losing attorney Mario Apuzzo wrote:
Things are not so tough for you on our own blog, aye Mario? I laughed out loud when I read your whimper about the opposition brief in your appeal. “The brief does not even acknowledge our factual allegations,” is right, but then you added the howler:
“It is strange as to why the brief does not even contain these factual allegations within it, giving the appearance that the Justice Department does not want such allegations to be even included in any official court record.”
The reason the defense did not address you factual allegations, Mario, is that you factual allegations are not at issue in the appeal. You can tell because the issues are stated on page 12 of your own opening brief: http://www.scribd.com/doc/25461132/Kerchner-v-Obama-Appeal-Appellant-s-Opening-Brief-FILED-2010-01-19
Pretty smart of the U.S. Attorney’s office, sticking to the issues before the Court. You might think Dr. C. is tough, but in Court is where you’re really getin’ schooled.
“By the way, I’m still waiting for you or any of your buddies to tell me with what passport Obama traveled to Pakistan.”
Simple. His US passport. According to the US State Department, and backed up by newspapers articles from that time period, there was no travel ban or restrictions against US citizens traveling to Pakistan.
It’s also like saying that there’s a debate in the scientific community between evolution and intelligent design, when no such debate exists. Oh wait, they are saying that.
Elly Nordyke is alive in Hawaii
She was in the birth ward with Stanley Dunham
Old classic Manoa House great view.
Go visit her, she would love the company.
Don’t bring wine she has a heart condition.but expect to stay for the afternoon.
She will talk about the birth, her children, whatever until you are bored to tears.
She was a university researcher her mind is still sharp. Hurry she is 80. She takes notes and has notes ready.
Put up or shut up and you get a Hawaii vacation. Rush limbaugh loves it here.