Posted on 04/02/2013 9:04:27 AM PDT by Cold Case Posse Supporter
There was still one Hoover appointment on the bench at that time, Owen Roberts. He joined the others in a unanimous decision.
When have the merits actually been heard in a higher court? Cite the case in which it was submitted that Wong Kim Ark doesn't apply to Obama because his father was never permanently domiciled in the U.S.
The Point remains. Roosevelt appointed judges went on to do some seriously deranged judicial activism.
Looking at Owen Roberts, it appears he was an unprincipled swing vote, much like David Souter.
Extending and clarifying comments in post 297
In the beginning there where the Thirteen Colonies. The citizens of these Colonies were British subjects. These subjects may have emigrated from Great Britain, emigrated from elsewhere, or have been born in these colonies.
Upon the Declaration of Independence each of the colonies became separate independent sovereign states, and these British subjects became American Citizens.
Each of these sovereign states wrote constitutions and instituted a new frame of Government different from their colonial government.
To prevent anarchy, many states adopted portions of English common law except where it conflicted with their Constitution or laws.
Each sovereign state added new citizens by citizens giving birth and by naturalizing new citizens according to their state law.
After the Revolution those sovereign states joined in the Articles of Confederation. The Articles dealt primarily with mutual defense, amity between states, coinage, diplomatic and international issues.
Each state retained its sovereignty (Article II) and each state continued to add new citizens by birth and by naturalization under their state law.
Eventually the Constitution of the United States was adopted. State sovereignty continued to be retained by the Amendment X reservation of state powers. Notably, states ceeded to the United States their power of naturalization.
New citizens were added by citizens giving birth and by naturalizing new citizens according to United States law.
It is notable that these sovereign states have adopted two frames of government, both of which retain state sovereignty and neither of which adopt the English common law, in whole or in part.
Under the Articles of Confederation the states retained all their sovereign powers.
Under the Constitution the states ceeded all national concerns to the federal government. The Tenth Amendment makes clear that States retain only 1) those powers not delegated to the Federal government and 2) those powers not prohibited to states.
The United States is a compound republic. The Constitution defines how the sovereign states relate to each other as well as to the national government and it to them. The national government handles international affairs.
Under the Constitution there is a hierarchy of law:
• federal constitution
• treaties and acts of Congress
• State constitutions
• acts of State legislatures
This is unique and there is nothing like it found in English law.
Also:
• England does not have a written constitution
• Acts of Parliament can not be questioned
• English common law is customary domestic law, it is municipal in nature
By contrast, the United States has written constitutions and legislative acts are subject to judicial review.
The limited sovereignty of the states leaves them municipal duties and powers.
The supreme sovereignty of the federal government is national and international, not municipal.
For the reasons stated, unlike the states the Federal government does not and can not rely on English common law.
As is obvious: the common law of England is municipal in nature and ill suited to relations between sovereign states (both internal states and internationally). Relations between sovereign states is dealt with by the law of nations.
Naturalization is international by its very nature. International relations are handled by the federal government. Under the Constitution naturalization powers reside in the Federal government, not in the states, customary common law, or courts. Naturalization is controlled by legislated acts of Congress.
Let’s review the cases of citizenship and naturalization that arise prior to the Declaration of Independence and afterwards, and upon the adoption of the Constitution and afterwards:
Case 1
A British Subject in and Citizen of one of the Thirteen Colonies becomes, at the signing of the Declaration of Independence, an American Citizen. At the Time of Adoption, by the grandfather clause of Art. II, this American Citizen is eligible to the Office of President*
Case 2
An Alien naturalizes and becomes a British Subject in and Citizen of one of the Thirteen Colonies. Upon the signing of the Declaration of Independence, he becomes an American Citizen. At the Time of Adoption, by the grandfather clause of Art. II, this American Citizen is eligible to the Office of President*
Case 3
A British Subject in and Citizen of one of the Thirteen Colonies has a child prior to the Declaration of Independence. This child is a British Subject and a native born Citizen of the Colony. At the signing of the Declaration of Independence this British Subject becomes an American Citizen. At the Time of Adoption, by the grandfather clause of Art. II, this American Citizen is eligible to the Office of President*
Case 4
A British Subject in and Citizen of one of the Thirteen Colonies has a child after the Declaration of Independence. The parents become, at the signing of the Declaration of Independence, American Citizens. The child, born from American Citizen parents, is a natural born Citizen. This natural born American Citizen is eligible to the Office of President*
Case 5
Subsequent to the Declaration of Independence and prior to the Adoption an Alien naturalizes (under state law) and becomes a Citizen of one of the Thirteen States. At the Time of Adoption this American Citizen, by the grandfather clause of Art. II, is eligible to the Office of President*
Case 6
Subsequent to the Adoption an Alien naturalizes (under United States law) and becomes a Citizen of the United States. This Citizen is not eligible to the Office of President, they were not a Citizen at the Adoption nor are they a natural born Citizen.
Case 7
Subsequent to the Adoption an Alien has a child. The child is Alien and is not eligible to the Office of President.
* Provided:
• they are at least thirty-five years old
• have been fourteen years a resident within the United States
The Naturalization Act of 1790, et seq. specify the minor children of Aliens naturalize upon the naturalization of the parents.
These means that native born citizen is synonymous with natural born citizen.
There are two kinds of citizenship: native or natural born, and naturalized.
Subsequent to the ruling in United States v. Wong Kim Ark this is no longer true.
Broadening the “subject to the jurisdiction” clause of the 14th Amendment to include domiciled aliens which heretofore were not “subject to the jurisdiction”, the ruling created a distinction between native born citizen and natural born citizen.
This broadened interpretation of the 14th Amendment jurisdiction clause naturalized the children of certain aliens thus creating a distinction where none had existed.
Native born citizen and natural born citizen are no longer synonymous.
Early authorities that citizens born here were natural born citizens are correct. It is no longer true after Wong Kim Ark.
That was a trick question, right? I’m sure that you know that “merits” aren’t heard in (higher) Appellate Courts. They are only heard in original jurisdiction (lower) courts. Appellate courts rule on errors of law or constitutional interpretation and they don’t hold trials.
http://en.wikipedia.org/wiki/Appellate_court
So if any plaintiff challenged Obama’s attorneys’ use of Wong Kim Ark on the grounds that Barack Obama Senior was not permanently domiciled, that would be heard on appeal to higher state or federal courts.
However the ruling in US v. Wong Kim Ark says: “[an alien parent’s] allegiance to the United States is direct and immediate, and, although but local and TEMPORARY, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s case, 7Coke 6a, strong enough to make a natural subject, for, he hath issue here, that issue is a natural born subject.”
The majority decision went on to state that: “’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 the law of the land.”
The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.However, the court's discussion is not to be followed when found to be erroneous. Such judicial dicta is not authoritative.Order affirmed.
The discussion in Ark contains several errors. Here are two.
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.
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.
This is an error of fact. The same rule did not exist "in the United States afterwards".
After the Declaration of Independence and before the adoption of the Constitution, naturalization was a function of State governments. Delaware, Maryland, South Carolina, and Virginia had specific naturalization laws.
Another difference is in the fact that Connecticut never adopted English common law.
So not only did the same (prior, colonial) rule not apply, the rules were not uniform. Upon the adoption of the Constitution the rule of naturalization was made uniform.
A second error occurs in the discussion of State v. Manuel.
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 was a "subject of the king" is now "a citizen of the State."
The US Supreme Court is citing State v. Manuel, an 1838 case before the North Carolina Supreme Court.
The following is the first portion of the paragraph containing the sentence cited:
It has been said that before our Revolution, free persons of colour did not exercise the right of voting for members of the colonial legislature. How this may hvae been, it would be difficult at this time to ascertain. It is certain however that very few, if any, could have claimed the right of suffrage, for a reason of a very different character than the one supposed. The principle of freehold suffrage seems to have been brought over from England with the first colonists, and to have been preserved almost invariably in the colony ever afterwards. In the act of 1743, ch. 1, (Swan's Revisal, 171,) it will be seen that a freehold of fifty acres was necessary to entitle the inhabitant of a county to vote, and by the act of 2d Sept. of 1746, ch. 1, Ibid. 223, the freeholders only of the respective towns of Edenton, Bath, Newbern and Wilmington were declared entitled to vote for members of the Colonial Legislature. The very Congress which framed our constitution, was chosen by freeholders. That constitution extended the elective franchise to every freeman who had arrived at the age of 21, and paid a public tax; and it is a matter of universal notoriety that under it, free persons without regard to colour, claimed and exercised the franchise until it was taken from free men of colour a few years since by our amended constitution. But surely the possession of political power is not essential to constitute a citizen. If it be, then women, minors, and persons who have not paid public taxes are not citizens - and free white men who have paid public taxes and arrived at full age, but hove not a freehold of fifty acres, inasmuch as they may vote for one branch and cannot vote for the other branch of our legislature, would be in an intermediate state, a sort of hybrids between citizens and not-citizens. 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 was a "subject of the king" is now "a citizen of the State." Considering therefore the defendant as having a right to the protection of the clauses in the constitution and declaration of rights on which he relies, we proceed to the examination of the alleged repugnancy between these and the act of 1831. The 39th section of the constitution is in these words: "The person of a debtor, where there is not a strong presumption of fraud, shall not be continued in prison after delivering up bona fide all his estate, real and personal for the use of his creditors in such manner as shall be hereafter regulated by law." ....
It is quite clear that Judge Gaston's references to "our law" and "our constitution" are references to the statutes and Constitution of North Carolina. As North Carolina has a reception statute the cited sentence is true in North Carolina. The same can not be said for the federal government which does not incorporate common law via Constitution, reception statute, or other method.
The cited sentence is inapplicable to the federal government. It is erroneous to apply it to the federal government
A court's discussion, judicial dicta, is not authoritative and is not to be followed when it is found to be erroneous. The statements concerning a "same rule" of naturalization existing from colonial time through to 1898, and the application of Manuel to equate "citizen" and "subject" are erroneous, not authoritative and are not precedential. While lower courts are bound to follow the decision in Ark, they can not rely upon erroneous statements.
Lower courts are bound by Supreme Court decisions, as you said. And in 115 years since 1898, no subsequent Supreme Court decision has reversed US v Wong Kim Ark.
When a judicial ruling contains errors of fact, that decision is challenged in subsequent appeals.
Whether the decision has been reversed or not is not the point. Nor is it the point that the decision may be challenged in subsequent appeals.
The point is that erroneous judicial dicta is not authoritative and can not be followed. Hence, the discussions mentioned are of no value to a lower court. Lower courts can not rely upon that portion of the discussion.
You seem likewise immune to the obvious paradoxes and nonsensical results which accompany such an interpretation.
An objective person would note, as the court did in Minor v Happersett 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.
The court is admitting that there *IS* another view, even though it implies that this is a lesser view. (It happens to be the view you are endlessly championing.)
Your side does not even seem to take seriously the notion that there *IS* another view. How about you spend some of your time looking for and analyzing evidence that the Waite Court was correct in Minor, and that there ARE two different views of the law, and both backed up by various Legal Authorities?
It's called "Objectivity."
All I’m doing is reviewing as many as I can of the actual written opinions of 207 original jurisdiction lawsuits in Obama eligibility actions; 90 state and federal appellate level rulings; and 25 petitions for Writs of Certiorari and/or applications for stays, injunctions or extraordinary writs that have been heard in conference at the Supreme Court of the United States. I am attempting to understand the rationale for judges or justices’ rulings of those rulings that are available to be read on the Internet.
There are reasons why a legal argument fails 322 times in a row. I think that it might be a good idea to try to learn something from those losses for the development of different and hopefully more effective legal strategies.
You are confusing me with the judges and justices that have ruled on the issue.
My position is that America likes winners. Every time another civil suit on Obama eligibility goes down to defeat, it strengthens Obama in the mind of the average citizen.
From what I have read in actual rulings, Judges have tended to give short shrift to Minor v. Happersett as having anything to do with presidential eligibility. For example, this is what I mean by “short shrift:”
Allen v Obama, Arizona Superior Court Judge Richard E. Gordon: “Arizona courts are bound by United States Supreme Court precedent in construing the United States Constitution, and this precedent fully supports that President Obama is a natural born citizen under the Constitution and thus qualified to hold the office of President. Contrary to Plaintiff’s assertion, Minor v. Happersett, 88 U.S. 162 (1874), does not hold otherwise.”—Pima County Superior Court, Tuscon, Arizona, March 7, 2012
http://www.scribd.com/doc/84531299/AZ-2012-03-07-Allen-v-Obama-C20121317-ORDER-Dismissing-Complaint
If the judiciary and Congress can’t be influenced, what good are objective philosophical legal debates on blogs?
Subsequent Triers of Fact can use and have used both dicta and holdings as rationales for their decisions. Just because some people, including you, call statements in a ruling “erroneous” doesn’t make it so. Each Trier of Fact gets to decide for him or herself what is persuasive and what is not. It is the job of the attorney to convince a judge or panel of justices of the accuracy or inaccuracy of statements made in any earlier court ruling.
Sure, they dress it up in a bunch of legal jargon, but most of their decisions are based on what the herd thinks, not on efforts to understand original intent.
Why you think that anything can be learned from herd mentality and group think, I do not know. From my perspective it is pointless to look for a deeper meaning in the commentary of this fraternity. There is no truth or insight to be found there, merely mindless repetition.
I’m not among those who have chosen to file 207 civil suits and rely on the American judiciary. Your question and statements are best addressed to those in the Obama is ineligible movement who have relied solely upon that vehicle for redress of grievances.
Since they file the suits, I read the decisions.
After the first hundred versions of “Standing Denied” (A Ridiculous notion in and of itself) they should have gotten a clue.
I agree that they should have gotten a clue. The first thing any judge is going to look for in ruling on standing in a ballot challenge or an eligibility challenge is are the other candidates who were denied the office challenging the winner. When judges see that the other candidates are not plaintiffs, it makes it easy to rule for the defendant on lack of standing. No plaintiffs named McCain, Palin, Romney or Ryan; no Republican National Committee suing on their behalf; no Libertarian Party, no Constitution Party, no Green Party, no independent candidates and no other political parties challenging eligibility is like no spouse filing for divorce but only friends of the spouse trying to secure a divorce on her or his behalf. Friends don’t have standing. They aren’t the injured party.
One opposing party candidate filed suit, Alan Keyes of the American Independent Party and he was only on the ballot in four states.
The problem with this legal theory is that it overlooks the injury to the general population as the result of the policy decisions of an unqualified man. That those of us in the General population have been injured by Obama is blatantly obvious. I have always regarded the "standing" issue as merely an excuse to allow the courts to avoid an unpleasant issue. (Questioning the legitimacy of the first "Black" president.)
When judges see that the other candidates are not plaintiffs, it makes it easy to rule for the defendant on lack of standing.
It gives them a procedural excuse to avoid the issue.
No plaintiffs named McCain, Palin, Romney or Ryan; no Republican National Committee suing on their behalf; no Libertarian Party, no Constitution Party, no Green Party, no independent candidates and no other political parties challenging eligibility is like no spouse filing for divorce but only friends of the spouse trying to secure a divorce on her or his behalf.
Not the same thing at all. Citizens are indeed injured by the acts of an unqualified man. "Friends" are not injured by the consequences of someone else's divorce.
Friends don’t have standing. They aren’t the injured party. One opposing party candidate filed suit, Alan Keyes of the American Independent Party and he was only on the ballot in four states.
We the people are not "friends". We are those who will have to pay the bills for whatever this man does. That individual Americans have no interest in the leadership of our nation is nonsense. What this translates to is that the court suborned our interest to a subjective technicality, and therefore should not be granted any respect for having done so.
It all comes back to one simple thing. We should NOT respect the opinions of these courts. They are not administering the law in the best interest of the nation, they are not logically consistent, and they are not interested in discovering the truth. Indeed, they are doing everything they can to obfuscate it.
No court reviewing an election challenge is going to see the entire American population as an injured class since tens of millions of people indicated their lack of injury by voting for Obama, more than voted against him, twice.
“Obama is ineligible” attorneys have designated a class of injured citizens by representing individual and specific groups of plaintiffs. There has been no class action lawsuit on behalf of “the American People” v. Barack Obama.
Many “Obama is ineligible” lawsuits have been dismissed for failure to state a claim on which relief can be granted, which is the court’s way of saying “we cannot remove an elected federal official,” that’s the job of Congress.
Also, the 50 state ballot challenges heard in 2012 in 22 states were not dismissed for lack of standing. They had rulings that Obama was eligible for a state’s ballot. Several of those challenges are still pending on appeal.
For example, in the Florida ballot challenge: Voeltz v Obama, Judge Terry P. Lewis, of the Leon County, Florida Circuit Court ruled: “However, the United States Supreme Court has concluded that ‘[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States. ‘Other courts that have considered the issue in the context of challenges to the qualifications of candidates for the office of President of the United States have come to the same conclusion.”—June 29, 2012
http://www.scribd.com/doc/99025994/FL-2012-06-29-Voeltz-v-Obama-order-dismissing-amended-complaint
It’s fine that you choose not to respect the decisions of courts but your lack of respect for rulings has zero impact on the judicial process.
I see three alternatives for dismissals for lack of standing:
1) Recruit new plaintiffs who have standing. Can you imagine the world wide media attention that would be drawn to “McCain, Romney, Palin & Ryan v. Barack Obama?”
2) Pursue legal remedies via the criminal justice system where standing is not an issue: forgery, election fraud, identity theft, perjury, et. cetera.
3) Use the constitutional process designated for the removal of a federal official: impeachment & trial/conviction in the Senate.
That is a subjective choice. Violations of Constitutional law ARE the business of every American citizen.
Many “Obama is ineligible” lawsuits have been dismissed for failure to state a claim on which relief can be granted, which is the court’s way of saying “we cannot remove an elected federal official,” that’s the job of Congress.
The only relief within the court's power, is to establish a finding of fact. Relief need not constitute an order from the court that Obama be removed from office, merely a sound judicial ruling as to whether or not he was there legally in the first place. In the presence of such a ruling, the Congress would be hard-pressed not to act in their capacity.
Also, the 50 state ballot challenges heard in 2012 in 22 states were not dismissed for lack of standing. They had rulings that Obama was eligible for a state’s ballot. Several of those challenges are still pending on appeal.
I expect nothing to come of it. The legal system is loath to admit a mistake.
“However, the United States Supreme Court has concluded that ‘[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States. ‘Other courts that have considered the issue in the context of challenges to the qualifications of candidates for the office of President of the United States have come to the same conclusion.”—June 29, 2012
But this is bad logic. Asserting that someone becomes a citizen at birth (through the operation of subsequent law which did not exist in 1787) does not establish that this constitutes a "natural citizen" as was meant by article II.
It’s fine that you choose not to respect the decisions of courts but your lack of respect for rulings has zero impact on the judicial process.
I don't regard the sun as rising and setting by the opinions of courts. I preach disrespect regarding them, and I hope eventually to see this notion avalanche and become a dominant meme among the American Population. I believe it is in the Interests of the nation to denounce our current judiciary, and refuse to respect their nonsensical decisions.
They do not rule, We the People rule. They are our servants, and we need to make them answerable to us. Failing that, the least we can do is to mock and ridicule them as a nonsensical body and ever present threat to our freedom. Thomas Jefferson regarding the courts.
You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves. …. — Letter to Mr. Jarvis, Sept, 1820
.
1) Recruit new plaintiffs who have standing. Can you imagine the world wide media attention that would be drawn to “McCain, Romney, Palin & Ryan v. Barack Obama?” 2) Pursue legal remedies via the criminal justice system where standing is not an issue: forgery, election fraud, identity theft, perjury, et. cetera. 3) Use the constitutional process designated for the removal of a federal official: impeachment & trial/conviction in the Senate.
None of that will happen, mostly for social reasons. McCain would rather see the nation ruined before suffering the embarrassment of questioning his opponents legitimacy. The entire establishment legal and social system feels the same way.
The thought that society would mock them is just too powerful for them to face. Ergo they will not make waves.
The people did rule; we had a national election in November, 2012. The Electoral College voted in December. A Joint Session of Congress certified the votes of the Electors, without any objections and the Chief Justice administered the Oath of Office in January.
All the subsequent events of which you speak presume a legitimate action beforehand. In absence of that, it is garbage in = garbage out.
The people can only be regarded as having "ruled" if they were given the facts and evidence prior to their decision. In this nation that no longer happens. All means of addressing the American people are in the hands of Liberal Democrats, and very little derogatory information about their preferred candidate is permitted to reach the consciousness of the voters.
Every Liberal Democrat in Media swings many thousands of votes on the basis of their advocacy. The Democrats in the media industry both deny access to information regarding their favored candidate, and mercilessly attacks the opposition candidate. Beyond that, vote buying and vote fraud tips the scales even further.
You might be suffering under the delusion that our elections are free and fair, but this is not an accurate assessment. Our system is badly broken, and we simply need to acknowledge the fact and look for a subsequent solution.
I personally think it is too late to repair, and it will likely have to be decommissioned. We appear to be heading toward financial collapse, and shortly thereafter, bloodshed.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.