Posted on 02/04/2012 3:17:29 PM PST by rxsid
"A Rat Called Tandem.
[UPDATED: 2:12 PM - Cindy Simpson's top headline article at American Thinker is also a must read. Excellent analysis as usual.]
What happened in Georgia is what we refer to in poker as, “playing to a script”. It’s like something out of a Frank Capra movie. The citizens head to court to fix a Constitutional wrong, and the State court appears to be tough on the feds, standing up to them bravely flexing their muscles in the name of their citizens. Nice script. But it’s so very transparent.
Everyone needs to read Mario Apuzzo’s in-depth exposure of the blatant flaws in Judge Malihi’s holding, wherein you will experience a brilliant researcher exposing a truly defective legal opinion.
I only have a little bit to add. My remarks will be brief, and focused upon Judge Malihi’s sad failure to address the issue of statutory construction, which I explained thoroughly in my last report, The Dirty “little” Secret of the Natural-Born Citizen Clause Revealed.
Malihi’s opinion directly contradicts his own recent opinion denying Obama’s Motion to Dismiss, wherein Malihi relied exclusively on statutory construction. However, yesterday, Malihi held that the 14th Amendment had to be read “in tandem” with Article 2, Section 1.
But doing so would render the natural-born citizen clause to be inoperative, in that 14th Amendment citizenship, and nothing more, would be the requirement to be President. This would mean that the natural-born citizen clause is rendered superfluous. Here’s what Chief Justice Marshall said about this issue in Marbury v. Madison, 5 U.S. 137 (1803):
“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.” Id. 174. (Emphasis added.)
And here’s what the U.S. Supreme Court held as to statutory construction in the seminal case on this issue, Morton v. Mancari:
“Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. See, e. g., Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961); Rodgers v. United States, 185 U.S. 83, 87 -89 (1902).The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. “When there are two acts upon the same subject, the rule is to give effect to both if possible . . . The intention of the legislature to repeal `must be clear and manifest.’ ” United States v. Borden Co., 308 U.S. 188, 198 (1939).” Morton v. Mancari, 417 U.S. 535, 550-551 (1974).
There is no “clearly expressed intention” to deem 14th Amendment citizens “natural born”. Those words were intentionally left out of the 14th Amendment. And Judge Malihi has simply overruled the U.S. Supreme Court by suggesting that the general citizenship clause of the 14th Amendment governs the specific requirement to be President in Article 2, Section 1.
Both clauses are not given separate effect by Malihi. His opinion holds that the 14th has the exact same effect as the natural-born citizen clause, while the 14th Amendment does not include the words “natural born Citizen”. Persons claiming citizenship under the 14th Amendment are deemed to be “citizens”. Malihi has added the words “natural born” into the Amendment. This is absolutely forbidden, according to Malihi’s own opinion in the Motion to dismiss, wherein he held:
“In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning.’ Six Flags Over Ga. v. Kull, 276 Ga. 210, 211 (2003) (citations and quotation marks omitted). Because there is no other ‘natural and reasonable construction’ of the statutory language, this Court is ‘not authorized either to read into or to read out that which would add to or change its meaning.’ ” (Emphasis added.)
Yeah, dude. Whatevah. Such lack of consistency, just weeks apart, from the same jurist… simply reeks. Now he’s putting words into the 14th Amendment, when just two weeks ago he said that was forbidden.
You see, the members of Congress and the colonies were well acquainted with the phrase ‘natural born subject’. Now, did NBC come from that common term, or from a translation of Vattel made 10 years after the Constitution?
Members of Congress were also familiar with the differences between the terms "citizen" and "subjects". Natural Born Subjects owed sole allegiance to the crown. Natural Born Citizens owe sole allegiance to the Republic.
“I don’t know, what happened to Malihi. I know, that he is not American by birth.”
WOAH. He’s a naturalized citizen? UNFREAKIN BELEIVABLE.
No bias there.
Thanks very much for the Ping!
“So how do we control Dual citizen presidents who are loyal to foreign countries?”
Don’t vote for them. Of course, Obama is not a citizen of Kenya, and he despises the UK, so the idea that Obama is a loyal subject of the Queen is a fantasy that only the truly insane believe.
Which may be why y’all lose in court even when the other side doesn’t bother to show up...
Keep ignoring WKA & its arguments, and keep getting your butt handed to you in court.
If you ever get tired of being laughed out of court, try showing why WKA doesn’t apply. And no, saying it doesn’t discuss the meaning of NBC is NOT going to help - too many judges know how to read. Seizethecarp has given y’all a hint. I don’t think it will stand up in court, but at least it is something a court can take seriously...
From the Minor decision:
"Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an [p166] association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance.
For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words "subject," "inhabitant," and "citizen" have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more."
Malihi is of Iranian origin. See links on previous page of thread.
they dont care about jindal or rubio, they got their commie in for 4 or 8 years and they are happy commies.
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They will not be truly happy until there is an uninterrupted line of commie presidents and the registered members of Free Republic, along with many others, are off to re-education camp which will only be a way point in our journey to an unmarked grave.
The issue seems to be about having somebody who is ineligible being placed on the ballot in the first place.
Don’t fall for the race card bait.
It’s not a race card bait. If it’s true, it’s true, and if he’s a Muslim, it render him biased. Or relatives in Iran could be threatened, etc.
Facts is facts.
I wasn’t even thinking about the muslim aspect. Most interesting to be sure.
I was thinking about a “naturalized” citizen declaring Obama a “natural born citizen.”
It’s like having a homosexual judge decide the outcome of gay marriage.
Whether it's true or not is irrelevant in today's politics. And unlike Smokeyblue, who commented on his being a naturalized citizen, you went straight to the Muslim angle.
Speculation as to the welfare of family members in a foreign country, if there are any, shouldn't be considered. He is an American citizen now and an elected official. What oath did he swear? To uphold the Constitution? Could an atheist uphold the Constitution?
If his family members choose to live in Iran then it's their choice. Malihi and his immediate family sure got out of Dodge in the past, didn't they?
When was that do you think...when the Shah got ousted?
I’m not saying he ruled treacherously because he’s naturalized, or Iranian. I have no idea why he ruled treacherously. Plus, I do not give a farthing whether “people” think I’m racist/bigoted/etc. People who know me, know me, and people who hate me will keep doing so.
The point to be considered is that he ruled trecherously, the “why” part is not so important; how to fix this nightmare is important.
There are wonderful Iranians, both in the US and in Iran. Just because he’s originally from Iran doesn’t mean he’s automatically evil or anything, just adds an interesting bit of information.
The time to worry about being misconstrued was gone a long, long time ago.
Plus, if Malihi is a Muslim, that is very relevant. Religion should enter the picture, just like it does with Romney. Everything is fair game.
Worrying about what leftists and the MSM think or says is a freaking waste of time. They will make up crap anyway, truth means nothing to them. Prancing around worrying about what those who hate the Constitution say or think is beyond a silly waste of time.
I understand your point but I think you should layoff little jeremiah.
It is an interesting point. I don’t think we can even say for sure he is a muslim. Just speculation.
People have got to stop falling for the battering ram of political correctness. We are told to completely ignore reality.
And by the way, since when did Islam become a race?
Look at what you wrote again...
If it’s true, it’s true, and if he’s a Muslim, it render him biased.
Nothing about naturalized, or Iranian there, is there.
Fuel for the fire and you just threw another log on it whether you wished/intended to or not.
WOW! Where is your head kept?
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