This is from Mario Apuzzo’s brief in the Kerchner nomination challenge in Pennsylvania:
…some person’s argument regarding the Minor definition of “natural-born citizen” is the equivalent to one arguing that the definition of milk which is:
“milk”
noun
1.
an opaque white or bluish-white liquid secreted by the mammary glands of female mammals, serving for the nourishment of their young.
2.
this liquid, as secreted by cows, goats, or certain other animals and used for food or as a source of butter, cheese, yogurt, etc.
3.
any liquid resembling this, as the liquid within a cocoanut, the juice or sap or certain plants, or various pharmaceutical preparations” [http://dictionary.reference.com/browse/milk ].does not provide the limits, parameters, basic qualities, essential qualities, the variables of what milk is because in the definition itself it is not stated that other liquids cannot be milk. Hence, even orange juice can be milk. So these persons are basically saying that because Minor did not say that any other person cannot be a “natural-born Citizen,” any other person can be. This example easily shows the fallacious nature of this argument.
Actually this excerpt exhibits the fallacy of “begging the question,” that is, assuming in advance what one is arguing. Here, Apuzzo assumes that Minor gives a definition “natural born citizen” which is what he is trying to show. He then gives an obvious dictionary-style definition that is totally unlike what we see in the Minor decision. Apuzzo goes on to say things like “when a court decision or a statute provides a definition, the elements of the definition given are not provided with an additional statement that they are each necessary and sufficient conditions …” Here again, Apuzzo begs the question by asserting that Minor provides a definition.
If you’ve ever looked at legislation, you will see a section at the top titled “Definitions” such as this example from the Health Insurance Portability and Accountability Act of 1996:
In contrast, nowhere in the Minor decision is there anything labeled a definition. The text relied on by Apuzzo from Minor says:
The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.
This is about as un-definition-like as I could imagine, talking about some authorities saying one thing and others saying something else, about doubts, and the non-necessity of deciding certain situations. In the Minor case, it was only necessary for the court to determine the citizenship of Virginia Minor, and that’s as far as they went. They did not define “natural born citizen”.
If Minor is not providing a definition (and I have no doubt that it is not), Apuzzo trying to use it as a definition is the fallacy of denying the antecedent. The formal fallacy is symbolized:
- P –> Q
- not P: therefore not Q
It’s like saying:
- The people who own 100,000 share of Microsoft the the very rich.
- Warren Buffett does not own 100,000 shares of Microsoft; therefore he is not very rich.
Of course, normal people already understand this and Birthers probably never will.
Well, if you liked that, I bet you loved the math thingy he did where “natural = 0” is not logical.
Squeeky Fromm
Girl Reporter
He also didn’t pick the best example. From the Code of Federal Regulations:
131.110 Milk.
“(a) Description. Milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.”
Loren, tell me as an attorney, would you ever put something like that (even not used fallaciously) in a legal brief? Would you try to tell a judge what the definition of “definition” is?
And this brings up a point that I think both sides in the discussion are missing. Enforceable laws and regulations demand clarity. If the law didn’t define “milk” unambiguously, FDA would lack the authority to go into a dairy and seize contaminated milk. So, if “natural born citizen” is poorly defined-and it is, since even sensible people disagree on those born outside the US- then enforcement of it against one or another candidate is and always will be problematic.
So who should define it? Quite honestly, if the courts do so, they are guessing. Their guess may be more informed than the man on the street, but it is still a guess. The onus was really on those who wrote the phrase into the Constitution. Frankly, they screwed up that part. Age requirements are spelled out specifically-35, not “old enough to be wise”. The number of Senators/state is spelled out precisely-2, not “a prime number <3".
So, since the original writers failed to define their terms, it falls to the current legislative folks to look at the question and decide first whether artificial restrictions of office holders based on birth serve a valid purpose. If they do, then they need to be spelled out clearly and unambiguously, just as the definition of milk is.
Mario,
“We can see that probably the key word that was used by the Founders and Framers in the writing the “natural born Citizen’ clause was the word “natural.” Merriam-Webster Dictionary provides this definition of the for the word “natural:””
Merriam-Webster? I wonder how many Founders and Framers had a Merriam-Webster Dictionary? And I think I know why he didn’t use Samuel Johnson’s Dictionary of the English Language.
Actually, in the Jay letter it was “born” that was underlined.
The court wasn’t actually determining Virginia Minor’s citizenship. Her citizenship was listed a stipulated fact conceded by defendant in the original pleadings below. There is actually nothing in the record of the Court, or the court below, as to where she was born or what was the status of her parents. Defendant conceded she was a native born citizen below and the Court had no reason to determine otherwise since the holding of the case was that it didn’t matter it she was a citizen.
Rather, the discussion of citizenship was to point out that women had always been citizens. Minor was arguing that she was a citizen under the 14th Amendment and that voting was a privilege of 14th Amendment citizenship under the Amendment’s privileges and immunities clause. Waite’s answer to such argument was that women have always been citizens and have never had the right to vote. Therefore, voting was never a privilege of citizenship and isn’t under the 14th Amendment. The discussion of natural born citizenship is simply one of five examples that Waite puts forth to show that women had always been citizens. The conclusion of the natural born citizenship paragraph was that the group that there was no doubt about being natural born included women as “all children” in such definition included women the same way that “all persons” under the 14th included women, which was the basis of Minor’s argument. For such purpose it was unnecessary to determine the status of children of aliens as showing the group that there was no doubt about included women was sufficient. The entire paragraph was about natural born citizenship so the context makes it clear the court is not talking about some other type of citizenship when talking about childern of aliens as such would make no sense. In addition, the paragraph twice calls native born children of citizens simply “citizens” making clear calling someone a “citizen” doesn’t mean one is not natural born.
At best the paragraph is ambiguous. Clearly the court does not say the doubts are citizenship of children of aliens relates to a type of citizenship other than natural born citizenship. Saying it does is simply a lie. Trying to read such into the paragraph by claiming the class of persons identified as natural born is exclusive is again improper. It is as best a possible but unnecessary construction that makes no sense in the context of the paragraph. Hence, it should not be cited as authority at all other than to show the court was uncommitted to a view on children of aliens, the reason Justice Gray and Fuller cited it.
Per Curiam
Document Name: upon consideratrion of obectors’ amended motion for admission pro hac vice of Mario Apuzzo, Esq.
Comment: the motion is denied.
(denied means “go away Putz”)
So don’t bother showing up in court tomorrow, Mario.
Bwahaha,
Mario, a putz? O!
Do you have a reference?
OK, so this is really, really, really dicta, dicta, dicta.
Hey, he could always try to pull an Orly and claim he was there to testify as a “witness” .. 😉
ref Pro Hac Vice denied
http://nativeborncitizen.wordpress.com/2012/02/29/pa-kerchner-v-obama-motion-pro-hac-vice-denied/
.also
http://ohforgoodnesssake.com/
If Virginia Minor wasn’t a natural born citizen then the only women citizens would be naturalized women, which is preposterous.
Poor Mario, he is getting all the respect he deserves 😉
Obama’s lawyer objected to the motion for PHV given Mario’s involvement in previous challenges where the Court called the filing frivolous and asked Mario to explain himself. The Court appears to have agreed that Mario should not be admitted PHV.
Good call by Obama’s defense and the courts. I agree with both the argument and the conclusion.
I wonder how Mario deals with “the milk of human kindness”?
Mario is just angling for a write-up in World Net Dairy.
Squeeky Fromm
Girl Reporter
Oh, this deserves a Irish Poem:
Fra Apuzzo claimed this was “Not Fair!”
To which I reply, “OH Contraire!”
We caught his “Got Milk?”
He cried, “Hit the silk!”
And he landed on his Dairy Err.
Squeeky Fromm
Girl Reporter
Shades of Yeats Squeeky
Speaking of poems, I found one on Wong Kim Ark written by Supreme Court Justice David Brewer who was overjoyed to finally get rid of the case. Perhaps Donofrio can turn it into a song.
At last the end of Wong
We’ve studied, written long
and may be wholly wrong
Yet join the happy song
Goodbye, Goodbye to Wong
No more, no more of Kim
We’ve had enough of him
And close his case with vim
So raise the gladsome hymn
Goodbye, Goodbye to Kim
The last, the last of Ark
His prospects had been dark
If Gray had missed his mark
But now he’s on a lark
Goodbye, Goodbye to Ark
Something Martin Luther said comes to mind. In expressing his low regard for the highly obscure and symbolic Book of Revelation in the Bible, Luther is quoted as saying: “A revelation ought to be revealing.”
I might parallel in expressing my low regard for Mario Apuzzo’s interpretation of Minor v. Happersett as a definition by saying: “A definition ought to be defining.”
Mistranslation. Book of Rorschach.
Dr. Conspiracy wrote:
It is VERY MUCH like the example you gave.
It’s really kind of a trick of the English language that he’s pulling.
The verb “are” or “were,” in this context, actually means “ARE/WERE MEMBERS OF.”
For example:
The people who own 100,000 share of Microsoft ARE MEMBERS OF the very rich.
It was never doubted that the US-born children of citizens WERE themeselves, on the birth, MEMBERS OF “natural born citizens.”
Apuzzo twists the meaning, and claims that “are” or “were” means “IS EXACTLY AND EXCLUSIVELY EQUAL TO;” or “WERE THE ONLY MEMBERS OF.”
It’s simply a lie.
Scientist, I disagree. My opinion is, if they saw this foolishness going on, their reaction would be to wonder what the heck the problem was. Not that they, in their own politics, were above such shenanigans.
I believe it was believed to be obvious. A true, locked down, air-tight definition would be very difficult to compose. And inflexible. It would be impossible to anticipate all possible circumstances, it would have to be revisited time and again … as it has been anyway.
I challenge anyone to write a succinct, workable definition. The thought reminds me of the birther that posts on NBC’s blog the constant revisions of her chart defining NBC per her birther memes.
I accept: natural born citizen means citizen from birth, born citizen. That rule has never changed, although the rules stating who is born citizen have.
That’s incomplete …. an indefinite definition, as it leaves the question, “Under what conditions is one born a citizen?” hanging. IMO, no more definite, and longer, than what appears in the Constitution.
They are two different although dependent rules. The laws governing who is citizen from birth have changed over time. The fact that whoever at some point in history was born citizen was a natural born citizen hasn’t changed, although birfoons try desperately to obfuscate it.
If you look e.g. at the “definition of natural born citizen” as birfoons call it in Minor, it’s actually discussing simply who is citizen from birth and the famous “doubts” are about whether to include some as even citizens at all. There are no doubts that whoever then is born citizen is a natural born citizen.
Certainly not, Joe, and it’s clever, but not discrete. Not whol unto itself. It wouldn’t head off the current “non-debate”, just shift the term.
The definition of NBC has been problematic for a long time. I came across a list of circumstances by which was considered an American citizen by/at birth from the 1870s … a list of 7 items, still didn’t cover all the fun scenarios that have come up as birtherism has run its course.
As the lone “birther” here, I feel moved to say that everything said here is the plain and simple truth. As one who detests the warping of the use of logic more than anyone, I’ve been compelled to explain to Mario and Donofrio repeatedly why they need to do a total rethink of the twisted logic they’ve applied to Minor. It’s bad enough that their logic is a complete miscontruence of the statement, but worse is the fact that the added comment about natives, -natural born citizens, by Waite was totally superfluous to his description of natural citizens and he could have not only omitted the words “natural born” but he could have omitted the whole sentence and it would have changed nothing in regard to describing who is unquestionably a citizen. In addition, his addition of “natural born” to the discussion of plain vanilla citizenship was an unnecessary referrence to Vattel’s use of the term “les naturels” (the naturals) which was mis-translated as “natural born citizen” when the word for citizen is not the word for natural. It appears he simply felt moved to demonstrate his knowledge of Vattel’s description and thereby clouded the issue as if it were perhaps something more than simple natural citizenship, implying an issue of presidential eligibility.
Their error lies in the claim that Waite defined a class of citizens, namely the natural born, and then determined that Minor was a member of that class, but as stated by others, he did not define any such class, all he did was describe “all children born in a country of parents who were its citizens”. The example of a true definition posted previously contains two essential words; “All” and “Only”, and if one of them is missing then there’s a whole in anything purported to be a definition.
Both Mario and Donofrio are either trapped by their old jump-the-gun assumptions which became the basis of their entire approach to presidential eligibility, or they suffer from a flaw in their logic center, similar to someone who suffers from tone-deafness and is unable to recognize or imitate the pitch of sound or music. It may be a combination of the two, but I think of it as “bias blindness” and as long as the bias exists, the blindness will also because it derails clear normal thought.
Anyway, I’ve written more on the topic of Vattel’s and Justice Waite’s observations that anyone, -exposing and destroying the the Donofrion-Appuzonian interpretation with Vulcan-like clarity. Here’s some of what I’ve written:
THE MISCONSTRUENCE OF MINOR V HAPPERSETT
http://h2ooflife.wordpress.com/misconstruence-of-minor
WHEN DESCRIPTIONS ARE KINGS, DEFINITIONS ARE GODS
http://h2ooflife.wordpress.com/when-descriptions-are-kings
DISSECTING THE “DEFINITION” OF NATURAL BORN CITIZEN
http://h2ooflife.wordpress.com/dissection-of-nb/
I must disagree that you are the lone “birther.” That’s hardly correct.
I will agree that Donofrio and Apuzzo are using tortured logic to misrepresent Minor v. Happersett.
However, I do not think that your “self-evident” approach will gain any more traction with the courts than Leo and Mario have with theirs. Courts work on precedent and law, not what you find self-evident. You may be surprised to learn that “self-evident truth,” like beauty, is in the mind of the beholder.
If we start with “citizenship at birth” as the requirement, the ultimate terms are clear, while allowing flexibility. We have to acknowledge, after all, that citizenship itself was stunted and distorted when this requirement was written. Forget about “at birth.” Slaves weren’t citizens, but property, and such citizen-less “property” nonetheless counted three-quarters towards representation. Women were not full citizens.
So we get someone like Epperly in Alaska arguing garbage, but blind to that garbage no doubt thinks he is proceeding logically. You can even chart out his garbage, but it’s still garbage, and was garbage even in the beginning of our constitution.
We had a civil war over the definition of citizen (despite the constitution getting very precise in its definition, three-quarters precise!), never mind natural born citizen.
The constitution is at its best when it provides a framework with flexibility. “Citizenship at birth” is the natural ley line, or meridian, or border in this presidential requirement. We can get fractal and argue about where actual boundaries are, never mind governmental boundaries.
As Dr. C said elsewhere, this is why we have courts, to decide such matters. There is no definition that seals every deal. Even in the milk definition provided by Scientist above. Thus, the courts provide flexibility in *judging* where the lines are.
I mean, milk is only milk according to the definition above if it comes from a *complete* milking. There probably is a good reason (I could guess, but I’m sure someone actually knows, and no milk trolls please!) why the definition includes that requirement, but I do believe Epperly has another lawsuit in the works, about how he was sold the proverbial bill of goods, i.e., so-called milk from an incomplete milking.
The constitution is a framework for arguments, debates and decisions, not an instruction manual from Ikea. The founders could have been clearer, but that’s because they never got clear on it themselves, never had the involved debates to work out all the details. It may even be for the best that they didn’t, that this was not on the tip-top of their lists. They hit upon a term, relied upon common law to fill out the basis, and created a governmental framework for dealing with the undefined future.
Whatever they might have meant, the best resolution is clear, that natural born citizen means citizen at birth. If the court ever decides otherwise, and people care, then we would do well to pass an amendment, either changing it clearly to this, while allowing that definition to be set in detail by Congress, or as some were trying before this President, to make it moot by allowing non-NBC’s.
A well-written post, Paper, thanks! I absolutely agree. It seems desirable that the term was clearly defined, but it isn’t, and that’s a good thing. Any definition would have to evolve over time, and be just as litigated, as the existing language has been. Getting back to the root, I was disagreeing with the idea that the Founders had screwed up or blown it somehow.
Well, as we know, the founders gave the ultimate power to Congress to determine if a president is eligible. So they may have technically screwed up in defining the details of the requirement, but they also overall were distinctly trying not to define all and everything. If they had, they would never have reached an agreement that enough states would ratify.
Yes, this is my subtle way of introducing Benjamin Franklin into these debates about what the founders meant! Enough with Hamilton already. 🙂
Another clear boundary would indeed be only citizens born on American soil. The founders could have come right out and said that, too. I think that would be too stultifying, even back then, in a time when they themselves recognized they needed exceptions (and a time when Congress itself used the term NBC in its statutes about who was a citizen at birth), and most especially stultifying in our day, when we have well-overthrown their limits on citizenship itself.
This of course takes us to the heart of the disagreement with birthers. Their hyper-attacks on this point are not about technical definitions. If the definition was clear, or made clear by amendment or other means, would they just say, okay then, that’s all we wanted? After all, it is beyond clear enough the President actually was born on American soil.
If I didn’t have an inescapable first row seat to the birther chorus, I wouldn’t find myself much delving into the topic, as intriguing as the details and history can be intellectually, just as most people do not. Which is why it has never finally and for all time been hammered out already. Forget the founders. We haven’t bothered to settle it after two hundred plus years.
If it does get settled clearly, it will be because American has become a potent gathering place of peoples, all kinds, so much so that the issue finally has become unavoidable. That is why I suspect the ultimate resolution, one way or another, even after some kind of imaginable setback, would be the broader definition, if not an outright removal of the requirement (as unimaginable as that is right at this second).
I’m going to put on my fantasy cap and imagine what the result would be if the new birthers won their argument about two citizen-parents being required.
Here we go:
“Yeah!!! Victory!!! Vindication!!!
“Wait, wait, we didn’t say you could amend the constitution. You can’t do that. Wait!
“Okay, okay. We’ll accept one citizen-parent on American soil. Stop! Don’t change it anymore.
“How about citizen at birth, that sounds reasonable, right, right? Don’t let naturalized citizens become president. Please, please, no. Mommy!”
Who is born citizen is defined pretty well by the 14th amendment and subsequent laws, which greatly reduces the need for time traveling and mind reading.
The Unwritten Law of Natural Citizenship
March 1 2012 http://h2ooflife.files.wordpress.com/2012/03/the-unwritten-law-of-citizenship.pdf
All of the confusion about NBC is resolved in what I penned today. A sample;
What exactly makes you think that you’re an American? By what law do you possess American citizenship? What can you point to in the American realm of legislation, judicial ruling, or constitutional amendment that makes you a legal citizen of the United States? If you are among the 98+% of average American citizens then the answer to those questions is: “Nothing”. There is no law that makes you an American citizen.
Your right of citizenship is not dependent upon human law to grant it because your citizenship is an unalienable natural right that springs from “The Laws of Nature” that control the natural order. Some of your other natural rights are the right to life, liberty, property, marriage, self-defense, justice, and the pursuit of happiness.
“Your right to serve as the President of the United States is not based on any law ever written. If your right to be an American is based on any law or legal determination then you are not eligible to be the President because you are a “legal citizen”, -probably even a “constitutional citizen”, but not a natural citizen.
Even if you are a “legal citizen” from birth, i.e. -a “born citizen” or “native-born citizen”, you are not eligible to be the President because your citizenship is not due to being the off-spring of natives but instead was a form of automatic naturalization granted for the benefit of children of immigrants. It was bestowed by the generosity of the American people when they ratified the 14th Amendment.
But anyone who is not born to American parents is not eligible to be the President. It’s really not complicated. It’s as simple as that, and that is precisely why the framers of the Constitution saw no need to explain that which needs no explanation.
All American citizens are American nationals, but not all American nationals are American citizens, because we still have the exceptions such as American Samoans. [Former American Nationals; Puerto Ricans, and Guamians, are now, by law, granted American citizenship, as are Native Americans.] Similarly, while all natural born Americans (or natives) are also “born citizens” via birth to citizens, not all born citizens are natural citizens (nor natives) because some are born to foreigners who have emigrated to America.
Those citizens are born citizens in a totally different sense. They are, by law, citizens-from-birth, -not citizens-by-birth, because the citizenship they possess was granted from the day they were born, -unlike natural born citizens who were never granted citizenship since the government has no authority to grant them citizenship being as it’s automatically obtained by natural means, (due to one’s parentage), for which there is no law.
But no one is a natural born American if they were born with “foreign blood”, i.e. foreign parentage, foreign heritage, foreign citizenship by birth, and who are subject to foreign jurisdiction. Only those born without any inherited foreign connection, -who from birth are not subject through their father to any foreign power, and have only American parentage, are the natural born children of America and can one day grow up to legitimately seek the office of the President, -a right to which they are entitled by the fact of their nature and not any man-make law.
What evidence have you ever seen that George W. Bush was not born with “foreign blood”? He’s kind of swarthy, can’t speak English and his mother is well known to have spent a lot of time with a certain Guatemalan gardener in Kennebunkport.
Utter nonsense. Sounds like nothing more than a thinly veiled excuse for xenophobic bigotry to me.
I’m glad that our real world laws have no connection to your personal beliefs and pretend notions.
I believe you are saying only Native Americans (e.g., the Sioux) are eligible to be president.
Well, that is certainly the biggest bit of BS I have read in a while. Nation-states are a human construction based upon human laws yet, you are claiming the citizenship in a human created relationship is somehow part of natural law. Right….
Yet another xenophobic bigot who tries to claim “natural laws” without actually having read natural law.
“What exactly makes you think that you’re an American?”
Stan: “Good morning USA,
I’ve got a feeling that it’s gonna be a wonderful day,
The sun in the sky has a smile on his face,
And he’s shining a salute to the American race,
Oh boy it’s swell to say, Good morning USA!”
Choir: “Good morning USA!!”
(http://americandad.wikia.com/wiki/Good_Morning_USA)
The problem with this theory, a problem that should be self-evident, is that natural law is nowhere codified. There is no consensus over what natural law is. Nothing is better evidence of this than the historical (and current) controversy over citizenship, or the 19th century controversy over slavery.
One cannot have the rule of law, the benefit of which is that everyone knows the rules, when law is in the mind of the beholder.
While individual notions of natural law can inform that person’s participation in the elective process and petitioning their representatives, it is not, nor can it ever be a guiding principle of actual law. Every individual cannot be a law unto themselves. That would be anarchy.
One can argue that “survival of the fittest” is natural law, from which has derived the most brutal forms of government. One recent writer developed a principle principle of scientific natural law which led to the superiority of men over women because men are bigger. See: http://www.obamaconspiracy.org/2010/11/the-force-v-obama/
Natural law is also the point of departure for law professor Herb Titus, only he finds natural law codified in the Bible, and actually finds a verse to support the notion that Obama is not eligible. See: http://www.obamaconspiracy.org/2011/05/law-professor-nixes-obama/
I’m still waiting for Mario to answer whether a moose needs a passport when it passes through the forest from New Brunswick into Maine.
This is Gertrude Stein territory, where in The Making of Americans she talks about it being the third generation that becomes American. Her insight into how we make something our own across generations, however, has nothing to do with being a natural born citizen eligible to be president.
Yes, that is my subversive attempt to get birthers to read Gertrude Stein!
you mean a recipe for a headache and frustration-prompted angst?????
Which are better than the gunshot wounds of war