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Posted on 02/05/2012 2:16:29 AM PST by edge919
In the ballot hearing in Georgia, Judge Malihi cited Ankeny v. Daniels from the Indiana Appeals Court to define natural-born citizen, using jus soli criteria to declare Barack "No Show" Obama to be eligible for Georgia's primary ballot, despite the lack of actual legal evidence to prove whether or not Barry was even born in the United States or not. That aside, the ruling is based on an errant conclusion.
Keeping things simple, the best way to emphasize why Minor v. Happersett is the one & only legal precedent and Wong Kim Ark is not, is to use Ankeny v. Daniels to show where it admits that its rationale is flawed. The Indiana Appeals Court admits there was an NBC definition in Minor:
"Section 1 of the Fourteenth Amendment to the U.S. Constitution governs who is a citizen of the United States. It provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States . . . .” U.S. CONST. amend XIV, § 1. Article II has a special requirement to assume the Presidency: that the person be a “natural born Citizen.” U.S. CONST. art. II, § 1, cl. 4. The United States Supreme Court has read these two provisions in tandem and held that “[t]hus new citizens may be born or they may be created by naturalization.” Minor v.Happersett, 88 (21 Wall.) U.S. 162, 167 (1874). In Minor, written only six years after the Fourteenth Amendment was ratified, the Court observed that:
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.
First, there's a clear error. Ankeny says the 14th amendment and Article II were read in tandem. This is false. The 14th amendment was used by Virginia Minor in an argument to claim she was a citizen, and from that citizenship she had a right to vote through the privileges and immunities clause. The Supreme Court rejected that her citizenship was due from the 14th amendment. But before they got to Article II, they covered the other way you could become a citizen ... by self-declaration and political unification.
Whoever, then, was one of the people of either of these States when the Constitution of the United States was adopted, became ipso facto a citizen -- a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was, consequently, one of its original citizens.
This is kind of important, because it rejects the English common law theory of natural-born citizenship AND it rejects the trite argument that the courts have only recognized two ways to become a citizen. When the country was formed, those persons loyal to the United States were the original citizens and their children were natural-born citizens. But by treaty, those persons loyal to the crown and their children, even those born on U.S. soil AFTER the declaration of Independence were natural-born subjects. This was formalized through the Treaty of 1783. Thus, the Constitution, being established only four years later was not going to use a standard of citizenship that allowed anyone born on the soil to be president. This explains why the Minor court said that "all children born in the country to parents who were its citizens" was the "nomenclature of which the framers of the Constitution were familiar" ... it matches the Law of Nations, and it's why the court characterized this type of citizenship EXCLUSIVELY as natural-born citizen. By using this definition, this would have made Virginia Minor legally capable of running for president even though the court denied she had a right to vote.
Ankeny argues that Minor "contemplates only scenarios where both parents are either citizens or aliens, rather in the case of President Obama, whose mother was a U.S. citizen and father was a citizen of the United Kingdom." A) This is false, because Minor contemplated several combinations of factors related to citizenship including split nationalities:
... in 1855 it was further provided that any woman who might lawfully be naturalized under the existing laws, married, or [p169] who should be married to a citizen of the United States, should be deemed and taken to be a citizen. [n11]
From this it is apparent that from the commencement of the legislation upon this subject alien women and alien minors could be made citizens by naturalization, and we think it will not be contended that this would have been done if it had not been supposed that native women and native minors were already citizens by birth.
The Minor court considered every combination it considered to be relevant, but it purposely and willfully only characterized ONE class of persons as natural-born citizens: those born in the country to citizen parents.
B) The other reason Ankeny's conclusion is false is because the Minor distinction of children born to citizen parents serves no purpose if not tied to how natural-born citizenship is exclusively defined. The characterization is self-limiting: "as distinguished from aliens or foreigners." For those latter persons to be citizens, they must rely on other means of citizenship such as through the Constitution or statutory law. If jus soli was enough to be a natural-born citizen, then the court could have simply accepted Minor's 14th amendment argument, but they did NOT ... and Ankeny admits it:
In Minor, written only six years after the Fourteenth Amendment was ratified, the Court observed that:
The Constitution does not, in words, say who shall be natural-born citizens.
The 14th amendment is part of the Constitution, so this means that the 14th amendment does NOT define NBC. This destroys Ankeny's assumption that jus soli is enough to be an NBC. U.S. v. Wong Kim Ark says this same thing, and it cites and affirms the Minor definition of NBC. The Ark case knew it could not apply the NBC definition to Wong Kim Ark, so it relied on applying common law, with some stipulations. Ankeny cites some of that common law, but it was dicta.
Ankeny claimed that "Thus, the [Minor] Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen." I've already shown this is false, but it's important to understand that under Ankeny's logic, Wong Kim Ark ALSO left this question open. And they admit it, by way of footnote:
We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a “natural born Citizen” using the Constitution‟s Article II language is immaterial. For all but forty-four people in our nation‟s history (the forty-four Presidents), the dichotomy between who is a natural born citizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant. The issue addressed in Wong Kim Ark was whether Mr. Wong Kim Ark was a citizen of the United States on the basis that he was born in the United States.
Wong Kim Ark was NOT declared to be a natural-born citizen. Again, using Ankeny's logic, this means the question is "left open." Why rely on a case that does not declare its subject an NBC, when the other one does?? Ankeny says it's immaterial to all but 44 people, which were all the people who were president, but this is false. The NBC criteria is to protect the public by trying to ensure we have a president who is less subject to foreign entanglements ... and that criteria would be material to ANYONE and EVERY ONE who wants to run for president.
Hey, loucon, do yourself a favor and look at the name of @USC Title 8
It's ALIENS AND NATIONALITY, not Citizens and Nationality
Nice. Stealing it.
Beat you too it. I stole that Several weeks back. :)
I tend to rephrase it as specifying the 14th amendment.
In Minor, the Court said "(the 14th amendment) does NOT say who shall be "natural born citizens."
I do this because I hope the Obots will call me on it and be forced to LOOK at the fact the court was DISCUSSING the 14th amendment when they said this. Obviously they couldn't have overlooked the meaning of the 14th if that is what it meant. They are explicitly saying that the 14th amendment does not define natural born citizens.
The implication is that since the 14th amendment DOES say who shall be born citizens, but not who shall be "natural born citizens" a "born citizen" is therefore explicitly different than a "natural born citizens."
This is because no one was aware of it at the time. He had changed his birth day to make it appear he was born later than he actually was, (and thereby confusing any attempt to locate birth records for him) and he lied about when his father was naturalized.
In order to make an issue of something, people must first be aware of it. Arthur kept it under the Radar until just last year.
Yup. I realized that right away.
TF:”I think we are being suckered by the GA court. The new Obozo appointment to the appeals court which will review the GA case if it is appealed, is bought and paid for. She was noted as having done work on this exact issue prior to his election. She got the job to silence this challenge.”
Two things.
First of all, I agree with you that the real isssue is whether Obama was born in Hawaii. Since he nor the state of Hawaii are willing to come forth with a legitimate (non-forged) birth certificate, that seems to point to the fact that none exists.
Second, I think that the Georgia Appeals court decision (assuming we get that far) will be moot either way it’s decided. I can’t image this issue will be closed until it gets to the SCOTUS. Seems that all the intermediate steps to get there are somewhat immaterial. Though it would be nice if one our two judges along the way actually read the law istead of making up their own...
“You’re stretching dicta and playing connect the dots for something that was NEVER said in WKA...Rogers, if you C&P the entire WKA decision, it will prove my point. Try it.”
As you wish:
I. In construing any act of legislation, whether a statute enacted by the legislature or a constitution established by the people as the supreme law of the land, regard is to be had not only to all parts of the act itself, and of any former act of the same lawmaking power of which the act in question is an amendment, but also to the condition and to the history [p654] of the law as previously existing, and in the light of which the new act must be read and interpreted.
The Constitution of the United States, as originally adopted, uses the words “citizen of the United States,” and “natural-born citizen of the United States.” By the original Constitution, every representative in Congress is required to have been “seven years a citizen of the United States,” and every Senator to have been “nine years a citizen of the United States.” and “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President.” The Fourteenth Article of Amendment, besides declaring that
all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,
also declares that
no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
And the Fifteenth Article of Amendment declares that
the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude.
The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. [p655]
In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.
In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said:
There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.
124 U.S. 478.
II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.
This fundamental principle, with these qualifications or [p656] explanations of it, was clearly, though quaintly, stated in the leading case, known as Calvin’s Case, or the Case of the Postnati, decided in 1608, after a hearing in the Exchequer Chamber before the Lord Chancellor and all the Judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin’s Case, 7 Rep. 1, 4b-6a, 18a, 18b; Ellesmere on Postnati, 62-64; S.C., 2 Howell’s State Trials, 559, 607, 613-617, 639, 640, 659, 679.
The English authorities ever since are to the like effect. Co.Lit. 8a, 128b, Lord Hale, in Hargrave’s Law Tracts, 210, an in 1 Hale P.C. 61, 62; 1 Bl.Com. 366, 369, 370, 374; 4 Bl.Com. 74, 92; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; Cockburn on Nationality, 7; Dicey Conflict of Laws, p. 173-177, 741.
In Udny v. Udny, (1869) L.R. 1 H.L. Sc. 441, the point decided was one of inheritance, depending upon the question whether the domicil of the father was in England or in Scotland, he being in either alternative a British subject. Lord Chancellor Hatherley said: “The question of naturalization and of allegiance is distinct from that of domicil.” P. 452. Lord Westbury, in the passage relied on by the counsel for the United States, began by saying:
The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status.
And then, while maintaining that the civil status is universally governed by the single principle of domicil, domicilium, the criterion established by international law for the purpose of determining civil status, and the basis on which
the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy, [p657] must depend,
he yet distinctly recognized that a man’s political status, his country, patria, and his “nationality, that is, natural allegiance,” “may depend on different laws in different countries.” Pp. 457, 460. He evidently used the word “citizen” not as equivalent to “subject,” but rather to “inhabitant,” and had no thought of impeaching the established rule that all persons born under British dominion are natural-born subjects.
Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said:
By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.
Cockburn on Nationality, 7.
Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics:
“British subject” means any person who owes permanent allegiance to the Crown. “Permanent” allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes “temporary” allegiance to the Crown. “Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.” “Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.
The exceptions afterwards mentioned by Mr. Dicey are only these two:
1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such [p658] person’s birth is in hostile occupation, is an alien.
2. Any person whose father (being an alien) is at the time of such person’s birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien.
And he adds:
The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person’s birth, it in theory, at least, depended not upon the locality of a man’s birth, but upon his being born within the jurisdiction and allegiance of the King of England, and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of, the Crown.
Dicey Conflict of Laws, pp. 173-177, 741.
It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
In the early case of The Charming Betsy, (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United States, Chief Justice Marshall saying:
Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of [p659] that character otherwise than in such manner as may be prescribed by law is a question which it is not necessary at present to decide.
2 Cranch 64, 119.
In Inglis v. Sailors’ Snug Harbor (1833), 3 Pet. 99, in which the plaintiff was born in the city of New York about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said:
It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects.
3 Pet. 120. Mr. Justice Johnson said: “He was entitled to inherit as a citizen born of the State of New York.” 3 Pet. 136. Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin’s Case, Blackstone’s Commentaries, and Doe v. Jones, above cited, and saying:
Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be [p660] subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.
3 Pet. 155. “The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.” 3 Pet. 156.
Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.
3 Pet. 164.
In Shanks v. Dupont, 3 Pet. 242, decided (as appears by the records of this court) on the same day as the last case, it was held that a woman born in South Carolina before the Declaration of Independence, married to an English officer in Charleston during its occupation by the British forces in the Revolutionary War, and accompanying her husband on his return to England, and there remaining until her death, was a British subject within the meaning of the Treaty of Peace of 1783, so that her title to land in South Carolina, by descent cast before that treaty, was protected thereby. It was of such a case that Mr. Justice Story, delivering the opinion of the court, said:
The incapacities of femes covert, provided by the common law, apply to their civil rights, and are for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations.
3 Pet. 248. This last sentence was relied on by the counsel for the United States as showing that the question whether a person is a citizen of a particular country is to be determined not by the law of that country, but by the principles of international law. But Mr. Justice Story certainly did not mean to suggest that, independently of treaty, there was any principle of international law which could defeat the operation of the established rule of citizenship by birth within the United States; for he referred (p. 245) to the contemporaneous opinions in Inglis v. Sailors’ Snug Harbor, [p661] above cited, in which this rule had been distinctly recognized, and in which he had said (p. 162) that “each government had a right to decide for itself who should be admitted or deemed citizens,” and, in his Treatise on the Conflict of Laws, published in 1834, he said that, in respect to residence in different countries or sovereignties, “there are certain principles which have been generally recognized by tribunals administering public law” [adding, in later editions “or the law of nations”] “as of unquestionable authority,” and stated, as the first of those principles, “Persons who are born in a country are generally deemed citizens and subjects of that country.” Story, Conflict of Laws, § 48.
The English statute of 11 & 12 Will. III (1700). c. 6, entitled
An act to enable His Majesty’s natural-born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens,
enacted that “all and every person or persons, being the King’s natural-born subject or subjects, within any of the King’s realms or dominions,” might and should thereafter lawfully inherit and make their titles by descent to any lands
from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through or under whom
title should be made or derived, had been or should be “born out of the King’s allegiance, and out of is Majesty’s realms and dominions,” as fully and effectually, as if such parents or ancestors “had been naturalized or natural-born subject or subjects within the King’s dominions.” 7 Statutes of the Realm, 90. It may be observed that, throughout that statute, persons born within the realm, although children of alien parents, were called “natural-born subjects.” As that statute included persons born “within any of the King’s realms or dominions,” it, of course, extended to the Colonies, and, not having been repealed in Maryland, was in force there. In McCreery v. Somerville, (1824) 9 Wheat. 354, which concerned the title to land in the State of Maryland, it was assumed that children born in that State of an alien who was still living, and who had not been naturalized, were “native-born citizens of the [p662] United States,” and, without such assumption, the case would not have presented the question decided by the court, which, as stated by Mr. Justice Story in delivering the opinion, was
whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship where none would exist by the common law if the ancestor were a natural-born subject.
9 Wheat. 356.
Again, in Levy v. McCartee (1832), 6 Pet. 102, 112, 113, 115, which concerned a descent cast since the American Revolution, in the State of New York, where the statute of 11 & 12 Will. III had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8a, that,
if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm,
and saying that such a child “was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354.”
In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said:
The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution 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.
19 How. 576. And, to this extent, no different opinion was expressed or intimated by any of the other judges.
In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.
1 Abbott (U.S.) 28, 40, 41.
The Supreme Judicial Court of Massachusetts, speaking by Mr. Justice (afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was “to be governed altogether by the principles of the common law,” and that it was established, with few exceptions,
that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term “citizenship.”
Garder v. Ward (1805), 2 Mass. 244, note. And again:
The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born.
Kilham v. Ward (1806), 2 Mass. 236, 265. It may here be observed that, in a recent English case, Lord Coleridge expressed the opinion of the Queen’s Bench Division that the statutes of 4 Geo. II, (1731) c. 1, and 13 Geo. III (1773), c. 21, (hereinafter referred to) “clearly recognize that to the King in his politic, and not in his personal, capacity is the allegiance of his subjects due.” Isaacson v. Durant, 17 Q.B.D. 54, 65.
The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said:
Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign [p664] State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . The term “citizen,” as understood in our law, is precisely analogous to the term “subject” in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a “subject of the king” is now “a citizen of the State.”
State v. Manuel (1838), 4 Dev. & Bat. 20, 24-26.
That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.
The same doctrine was repeatedly affirmed in the executive departments, as, for instance, by Mr. Marcy, Secretary of State, in 1854, 2 Whart.Int.Dig. (2d ed.) p. 394; by Attorney General Black in 1859, 9 Opinions, 373, and by Attorney General Bates in 1862, 10 Opinions, 328, 382, 394, 396.
Chancellor Kent, in his Commentaries, speaking of the “general division of the inhabitants of every country under the comprehensive title of aliens and natives,” says:
Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent. . . . To create allegiance by birth, the party must be born not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a State, while [p665] abroad and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that, during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered.
2 Kent Com. (6th ed.) 39, 42. And he elsewhere says:
And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.
2 Kent Com. 258, note.
Mr. Binney, in the second edition of a paper on the Alienigenae of the United States, printed in pamphlet at Philadelphia, with a preface bearing his signature and the date of December 1, 1853, said:
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, and, by that principle, the citizens o the United States are, with the exceptions before mentioned,
(namely, foreign-born children of citizens, under statutes to be presently referred to)
such only as are either born or made so, born within the limits and under the jurisdiction of the United States or naturalized by the authority of law, either in one of the States before the Constitution or, since that time, by virtue of an act of the Congress of the United States.
P. 20.
The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle. [p666]
P. 22, note. This paper, without Mr. Binney’s name and with the note in a less complete form and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Amer.Law Reg.193, 203, 204.
Here is the short version, for those who find reading a chore:
“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”
If two paragraphs is too much, here is the one sentence version:
“The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”
Judges read the law? Now that is a novel idea.
There was a time when that was exactly how it was done.
But Liberals need not worry about “the laws” because they are exempt from those trivialities.
It seems as though your criteria for whether or not a case has been decided on its merits is whether or not you get the answer you want.
No, that is not the case. but the judgement gave no reasoning in relation to the cases cited as precedent by those bringing the lawsuit.
He basically stated that since the State of HI said he was born in HI, he therefore was a “natural born citizen” as required by the Constitution.
Now how is that judging it on the merits of the case.
I stated earlier that the resolution of this must come from HI. Since they have stated he was born there.
But there is not a shred of evidence to support that except what is clearly a conjured document he presented in a .pdf format.
Examination of the .pdf document clearly shows it was not scanned from an original COLB. I have looked at the document he presented as his “long form” COLB. It is made up of multiple images, It has multiple pixel resolutions. It has various font styles, even within individual lines.
There is a “reason” for this to drag on so long. It is not as simple as some have stated that his birth name does not say Barack H. Obama, Jr. If it was that easy to explain, it would have been done long ago.
Atty. Van Irion to Appeal Judge Malihi’s Decision: Court Ignored Basic Rules of Interpretation
“The one point of good news from this ruling is that we have FINALLY gotten a court to rule on the merits of our argument. This may seem like a hollow victory, but it isn’t. Before this everyone that has brought a challenge against Obama’s eligibility has been dismissed on procedural grounds. Nothing is more devastating to the rule of law than a judicial branch that refuses to do its job. Before this case we had courts across the country telling Americans that they had no right to enforce the Constitution. That was absurdity at its most extreme. Liberty Legal Foundation found a case that we believed would at least get a ruling on the merits. We hate the ruling we got, but at least we got a ruling. Now we can appeal that ruling. The appeals process now will focus on the definition of “natural born citizen” rather than procedure for the first time since the issue of Obama’s eligibility was raise in 2008.”
http://obamareleaseyourrecords.blogspot.com/2012/02/attorney-van-irion-to-appeal-judge.html
Mr Rogers wrote:
“Here is the short version, for those who find reading a chore:
“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”
If two paragraphs is too much, here is the one sentence version:
“The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”
My response:
That is easily disputed by actual facts. Every child born in the U.S. was NOT a natural-born citizen in the late 18th century and for even most of the 19th century. Some children born in the U.S. were not even citizens, at all. Blacks were not provided birthright citizenship until the Civil Rights Act of 1866 and subsequently the 14th Amendment, and Native Americans were not provided birthright citizenship until the Indian Citizenship Act of 1924.
As discussed in WKA, blacks were considered property and thus could not be citizens, while Indians were treated separately in the Constitution, being members of foreign nations inside the USA.
The critical statement remains:
““The same rule [the rule applying to natural born subjects] was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution [as natural born citizens, since we were no longer subjects] as originally established.”
IOW, the rule applied to subjects in the colonies continued to be applied to citizens after Independence. Thus, NBS = NBC.
You're funny. I guess you missed the part where the Judge said the Birth Certificate copy from the internet isn't good for anything, but then said that he considers Obama born in Hawaii.
What evidence does the Judge have that Obama was born in Hawaii? The only piece that "sort of" indicated it the Judge Rejected!
How is coming to a conclusion without evidence deciding a case on it's merits?
I suggest you take it up with them.
I suggest you take it up with them.
Perhaps in the first two cases, but Orly contested that claim. If the issue is contested, how can the judge rule in absence of any evidence?
Even in the first two cases, why should the Judge accept plaintiff's mere allegation on this?
And you seem to unable to comprehend this simplest point. Orly did not stipulate that Obama was born in Hawaii. Whatever the previous two attorneys said does not bind her case.
She stipulated that Obama's location of birth is in question. You may argue that the first two attorneys stipulated Hawaii, but Orly did not. His ruling cannot encompass all three cases because the facts as stipulated in the first two cases cannot bind the third case where such "facts" are in dispute.
Rogers, do you not understand what it means to C&P the "entire" decision?? You stopped at Part III. All this says is that English common law was observed in the colonies to make persons natural-born subjects. Part V is where the court cites Minor v. Happersett and gives an exclusive, self-limiting definition of NBC. Notice, the court did NOT stop at part III. Thanks for proving me right yet again. You make it so easy.
Malihi’s decision didn’t stipulate any facts. The judge said he “considered” that Obama was born in Hawaii. He did not cite any source for showing if this is indeed fact or not. Since he admits Obama did NOT enter any legal evidence to support this claim, then it is an opinion, not an actual fact.
What you cited does NOT say this in even the most remote or convoluted fashion. At best, it says NBS = NBS. That's it.
I used your comment to add on top of. I'm preaching to the Obots who may not have understand the full breadth of what you had posted. I do that a lot. Instead, "yes, but ... ", this is a "yes, and ..."
I have cut & pasted, and linked to, the entire decision many times.
However, this sentence:
““The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”
does not equal “All this says is that English common law was observed in the colonies to make persons natural-born subjects.”
Why cut and paste an entire decision when you cannot even read ONE SENTENCE?????
Let me repeat just part of the sentence, since whole sentences are beyond you: “...and in the United States afterwards, and continued to prevail under the Constitution as originally established.”
Now, what is it that continued to prevail under the Constitution? That “every child born in England of alien parents was a natural-born subject” - but if it continued to prevail UNDER the Constitution, then it means that every child born in the US of alien parents was a natural-born citizen”.
The principle that birth in the territory gave natural born status was true of natural born subjects under the colonies, and natural born citizens under the states. That is the only way the “rule in force in all the English Colonies” could have “continued to prevail under the Constitution as originally established.”
You cannot delete half the sentence to make it read as you wish. WKA made Ark a NBC, as the dissent understood, and as every citizenship decision citing it has understood. You do not have to like it, but if you continue to ignore it, you will continue to LOSE - which is all that birthers have ever done - LOSE!
Until you can show WKA doesn’t apply to Obama, every court will laugh at you - even when Obama & his lawyer refuse to show up.
But you won’t listen, so you will continue to have Obama beat you like a red-haired stepchild. Tell me, do you LIKE getting your ass whupped by Obama? Is it fun for you?
The entire decision:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html
Read it, and listen to how you MIGHT be able to argue it doesn’t apply to Obama.
“Mr Rogers, Obama was born a member of a foreign nation.”
Another country made it possible for him to claim citizenship. He did not. Indians are foreign nations located INSIDE the US, so births inside the US territory did not result in US citizenship.
But since birthers love to get their butts beat, go ahead and go to court arguing that Obama is a subject of Queen Elizabeth, and therefor ineligible to be President. That will get you laughed out of court even faster than claiming Minor determines NBC status!
Really - how many times do y’all have to get laughed out of court before you figure out your arguments are legally stupid? Unless and until you argue that WKA doesn’t apply to Obama - and that argument is weak, but certainly COULD be made - you don’t have any chance at all. It has gotten so bad that Obama doesn’t even bother sending an attorney any more...
... that NBS = NBS. That's what the Treaty of 1783 is about as was affirmed in Inglis and Shanks. If this meant what you want it to mean, why did the court not stop its decision here??? It continued on for 46 more pages.
WKA made Ark a NBC, as the dissent understood, and as every citizenship decision citing it has understood.
Wrong. Ankeny footnoted that it did NOT make Ark an NBC.
The entire decision:
... includes Part V, which cites Minor v. Happersett for the court's official definition of NBC: "all children born in the country to parents who were its citizens." Thanks again for proving me right. It's so easy, even a cavemen could do it. Rogers, are you a caveman??
OK. You and the other Obama Butt Boys feel free to keep getting your butts spanked by Obama. If you think WKA says that people born in England continued to be natural born subjects under the Constitution, then you are way beyond any help. Keep losing, and squeal like a pig every time Obama spanks your ass.
And I say the same thing to you as well.
Reply 14 @You can't just make statements like yours without backing them up.
This is how conflict starts.
As the SoS for the State of Georgia Mr. Kemp is aware of the weight of his words. You need to take the time to do the legwork on your statement and back it up. Otherwise, all you're doing is wantonly spreading a fire.
This is not a slight, nor do I wish to pick a fight. I would simply like to flesh this out. If it's BS then it needs to be cut off at the pass.
Seriously, did you just skip reading my replies while you were reading the thread? I mean, this all happened early on in the thread and you first reply was at #37, well after you had to have read the conversation.
Ah, got it.
Obama became a British citizen at birth via the automatic operation of British law that applied at the time.
Here's what the U.S. State Department says about that... "Each country has its own citizenship laws based on its own policy. Persons may have dual nationality by automatic operation of different laws rather than by choice." http://travel.state.gov/travel/cis_pa_tw/cis/cis_1753.html
Obama automatically became a British citizen at birth via his non-U.S. citizen British citizen father. The Democratic National Committee OPENLY ADMITTED that Obama's citizenship status is governed by the British Nationality Act of 1948.
Read the Act. It says nothing about any possible future claim to British citizenship. It says, "Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth" http://www.uniset.ca/naty/BNA1948.htm
My replies @53 and @54 give some of the text that precedes that sentence.
Thanks for taking the time to explain this. That Fuller quote in his dissent gets put into HIS mouth all the time (by some) as justification for claims that the WKA majority made Obama eligible under the 14A. I stand corrected.
Orly should have no trouble with her appeal then.
I, simply, gave my opinion as to what he was going to do and why I felt that way. In addition, that letter he sent to Obams's attorneys about 'not showing up at your peril' says to me he was relying on the decision to back up his actions.
One would assume so, but one would have assumed that a person of questionable providence would never have been allowed to get on the ballot in the absence of verifiable proof. One would also have assumed that a Judge would not rule in favor of someone who didn't show up and didn't present evidence while citing plaintiff's unverifiable copy of an internet picture on the one hand, but dismissing all criticism of it on the other.
The way the legal system is broken nowadays, it is not safe to assume that reason and the legal process have any contact with each other.
But that is beside the point. The original topic of this exchange was the contention as to whether or not the judge weighed the merits of the case. Since you seem to agree that Orly has grounds for appeal, I must conclude that you have conceded that you were wrong in taking the position that the judge HAD weighed the facts of the case.
In a round about way, you have admitted you are wrong and we were right. Considering your tendency to obfuscate what is the plain truth in front of us, I will count that as being as much of an admission of error as we are ever likely to get from you.
You’re funny.
link to SoS rejects Malihi's decision
"accepting the view of the ALJ would mean that a candidate can determine his or her own qualifications"
Intentionally so. You on the other hand, cannot help it. :)
It’s my lot in life.
IMO, El Sordo obviously forgot his “/s” sarcasm tag on this comment.
Unlike Hatfield and Irion, Dr. Taitz failed to qualify ANY witnesses and failed to provide a legal foundation for ANY fact evidence.
An appeals court would have been bound by any facts that Malihi deemed admissible, such as a finding that BHO Sr. was Barry's non-citizen dad when Barry was born.
But due to Dr. Taitz’s bad lawyering, Malihi was unable to make any appealable conclusions of law absent any facts on which to base such conclusions.
“I guess there is no such thing as a default ruling in Georgia.”
___________
You didn’t read the ruling. Taitz won the case and then threw it away. She was offered a default judgement but refused it and asked to have her evidence weighed. Instead of taking the victory she introduced her “evidence” and the court found it lacking. Her “experts” are unqualified or she failed to produce credentials, her “evidence” is conclusory internet rumor rather than convincing.
This case was lost because of poor lawyering. She should have jumped on the default judgemetn, and if we do have a friend in the Secretary of State’s office (as some have suggested), he would have had a great excuse- A COURT FINDING- to keep Obama off the ballot.
I cannot see from the court’s holding, an avenue for appeal. If you want to unseat a sitting president, you can’t use a lawyer with a degree off of the internet!!!!!
That was for a house race and I doubt anyone even cared about the candidate. This is on a whole different level. Sorry, but all rationale, precedence, sanity and quite, frankly, our constition and birthright has been thrown out the window when it comes to Obama.
Constitution (Correction to prior post)
We don't know that the judge would have actually issued a default judgment. He says in the ruling:
Ordinarily, the Court would enter a default order against a party that fails to participate in any stage of a proceeding.
Well, oridinarily a court still finds against that party for not mounting a defense. In this instance, the judge takes up their cause for them. Who's to say he wouldn't have done that without the proceeding??
I am new at FR, but this is the first time I’ve been confronted with someone who is willing to skew the document to try to support their weak position.
You cite a PARTIAL statement in the judge’s ruling. You wrote:
We don’t know that the judge would have actually issued a default judgment. He says in the ruling:
Ordinarily, the Court would enter a default order against a party that fails to participate in any stage of a proceeding.
However the complete statement in the ruling reads:
Ordinarily, the Court would enter a default order against a party that fails to participate in any stage of a proceeding.[Citation] Nevertheless, despite the Defendant’s failure to appear, Plaintiffs asked this court to decide the case on the merits of the arguments and the evidence. The court granted the Plaintiff’s request.
Clearly the ruling went as I detailed. Taitz was offered a default judgement but refused and asked the court to judge her evidence. Rather than take the win, she demanded an audience rather than an action. Instead of petitioning the Secretary of State to uphold the court’s decision, Plaintiff is now licking wounds because Taitz is a poor lawyer.
I previously presented the best analogy, Taitz was playing Black Jack and was dealt a 21, but then asked for another card. Stupid.
Are you purposely being dishonest here?? The rest of what you cited is irrelevant to the point. It doesn't prove whether or not Malihi would have issued the default order as he claimed. It certainly sounds good. Others reported that he offered this default judgment BUT that they would be allowed to enter evidence and arguments into the record along with that judgment. The court is claiming the plaintiffs demanded a decision on merits. I wasn't there so I don't know if that's true. Regardless, there's no positive legal evidence to show Obama was born in the United States. It wouldn't matter how bad of a lawyer Orly Taitz is. Obama did NOT prove he meets the Constitutional requirement. It's not the judge's job to make Obama's arguments for him and then base them on unproven facts, but that's exactly what he did.
Second, let's assume the judge DID issue the default order. This doesn't mean the Secretary of State would abide by it. I've already shown where Malihi has a history of being overruled by the SoS. Further, if it's appealed, then the state has the sole responsibility to argue against Obama. This means that Orly's, Hatfield's and Van Irion's arguments never get presented. Now, if an appeal is necessary, they have something to fight against.
The citation that I omitted outlines the default procedure. Get on Westlaw if you need proof.
But, forget my comments. Certainly a Russian educated dentist with an internet law degree is the best attorney for this job.
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