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.
Anything and everything about a judge that just ruled a treacherous ruling is fair game. I am not going to play tippytoe because you tell me to.
Maybe his naturalized background didn’t influence him. If he’s a Muslim then I don’t trust him. I trust no Muslims.
If you think that my little comments on FR are going to turn some people off to FR or conservatism you’re out of your cotton picking mind.
“Haters are gonna hate”.
Well, to date my only error in predicting the outcome of birther court cases is that I thought they had a chance when Obama’s lawyer refused to show up. But the birthers STILL managed to lose...which speaks volumes about the accuracy of what they post here.
Someday, birthers are going to need to learn to read, so they will understand why they can’t make any progress by waving a copy of Minor as they walk into a court...
All I'm trying to do is warn people about what they write/say.
I'll keep on saying it too, naysayers be damned.
Even Debbie Schlussel gets it.
@Muslim Arabs Whine: “We’re Not White, We Want Separate Race on Census Form to Get More Govt $$$”; “White is Weird” December 17, 2009
And here’s a tip, being Arabic–particularly Muslim Arab, which is what this is all about–isn’t a race. It’s an ethnic group.
Isn't the race card all about ethnicity?
If this is the correct analysis, then it can be argued that Wong Kim Ark was decided correctly. If not, then not. Glad we cleared that up. :)
I disagree with RummyChick and would rather agree to disagree with her than to rehash her argument. I prefer the conclusions of law of Donofrio and Hatfield as applied to the different facts in Minor, ARK, and Ankeny.
I've seen Edge919 argue that Obama is NOT a 14th amendment citizen,(Which is plausible, depending on how you look at it.) and i've seen many argue that he might be. This is one of the problems with interpreting the law I think; The fact that a shading of one characteristic here or there dramatically changes what is the perceived meaning. It is splitting of hairs in some cases.
To me Mormonism is a cult, not a religion. I feel the same about Scientology.
Kind of tells you where I stand on that, doesn't it.
Of course, some people think Catholicism is a cult as well.
Snip...I looked up Circuit Court judges, Appellate judges, Superior Court judges, and more. They ALL had bios listed.
Nothing on Judge Michael Malihi.
Snip...For a judge that has been in his position since 1995, doesn’t it seem odd that he has next to no information out there about him?
Instant distraction of the issue.
(Spit)
Edit - You would have fit right in back in the late '50's and early '60s...
You have a bee in your bonnet. It’s not my problem, but yours.
They will bring with them the principles of the governments they leave, imbibed in their early youth; or, if able to throw them off, it will be in exchange for an unbounded licentiousness, passing, as is usual, from one extreme to another.
It would be a miracle were they to stop precisely at the point of temperate liberty. These principles, with their language, they will transmit to their children.
In proportion to their number, they will share with us the legislation. They will infuse into it their spirit, warp and bias its direction, and render it a heterogeneous, incoherent, distracted mass...
“These principles, with their language, they will transmit to their children”
Thomas Jefferson, Notes on Virginia 1782
Do you really want to know what Ben Franklin penned regarding who should immigrate to America and who should not?
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.
In other words, if one is a dual citizen, like Mr. Obama is, he owes his allegiance to both the United States AND the United Kingdom. This would pose an even larger problem if he were royalty. He would be unable to recind his citizenship...ever. Fortunately, Mr. Obama is not royalty. However, others are, and they too were born in the United States, and would be considered eligible to become president, according to recent court opinions.
Like this one about Germans?
Advertisements intended to be general are now printed in Dutch and English; the Signs in our Streets have inscriptions in both languages, and in some places only German: They begin of late to make all their Bonds nad other legal Writings in their own Language, which (though I think it ought not to be) are allowed good in our Courts, where the German Business so encreases that there is continual need of Interpreters; and I suppose in a few years they will be also necessary in the Assembly, to tell one half of our Legislators what the other half say; In short unless the stream of their importation could be turned from this to other colonies, as you very judiciously propose, they will soon so out number us, that all the advantages we have will not in My Opinion be able to preserve our language, and even our Government will become precarious. @The Support of the Poor - Benjamin Franklin 1753
Or was there some other you had in mind?
Even Ben got it wrong every now and then.
“In other words, if one is a dual citizen, like Mr. Obama is, he owes his allegiance to both the United States AND the United Kingdom.”
Actually, US law does not recognize dual citizenship. We know it exists, but we don’t worry about it.
And the idea that Obama owes the UK allegiance over the US is just STUPID. He hates England. He has lived the large majority of his life in the US, and has never shown any concern for England.
In any case, Minor said citizens were either born or made, and Obama would be a citizen born.
I am perfectly of your mind, that measures of great Temper are necessary with the Germans: and am not without Apprehensions, that thro' their indiscretion or Ours, or both, great disorders and inconveniences may one day arise among us; Those who come hither are generally of the most ignorant Stupid Sort of their own Nation, and as Ignorance is often attended with Credulity when Knavery would mislead it, and with Suspicion when Honesty would set it right; and as few of the English understand the German Language, and so cannot address them either from the Press or Pulpit, 'tis almost impossible to remove any prejudices they once entertain.
I’m not so sure you can handle what Franklin wrote who should be citizens and who should not.
“That the Number of purely white People in the World is proportionably very small.
All Africa is black or tawny. Asia chiefly tawny. America (exclusive of the new Comers) wholly so.
And in Europe, the Spaniards, Italians, French, Russians and Swedes, are generally of what we call a swarthy Complexion; as are the Germans also, the Saxons only excepted, who with the English, make the principal Body of White People on the Face of the Earth.
I could wish their Numbers were increased.
And while we are, as I may call it, Scouring our Planet, by clearing America of Woods, and so making this Side of our Globe reflect a brighter Light to the Eyes of Inhabitants in Mars or Venus, why should we in the Sight of Superior Beings, darken its People?
why increase the Sons of Africa, by Planting them in America, where we have so fair an Opportunity, by excluding all Blacks and Tawneys, of increasing the lovely White and Red?
But perhaps I am partial to the Complexion of my Country, for such Kind of Partiality is natural to Mankind.
Ben Franklin. One of the principal Founders.
And since Detachments of English from Britain sent to America, will have their Places at Home so soon supply'd and increase so largely here; why should the Palatine Boors [Germans] be suffered to swarm into our Settlements, and by herding together establish their Language and Manners to the Exclusion of ours? Why should Pennsylvania, founded by the English, become a Colony of Aliens, who will shortly be so numerous as to Germanize us instead of our Anglifying them, and will never adopt our Language or Customs, any more than they can acquire our Complexion.
Which leads me to add one Remark: That the Number of purely white People in the World is proportionably very small. All Africa is black or tawny. Asia chiefly tawny. America (exclusive of the new Comers) wholly so. And in Europe, the Spaniards, Italians, French, Russians and Swedes, are generally of what we call a swarthy Complexion; as are the Germans also, the Saxons only excepted, who with the English, make the principal Body of White People on the Face of the Earth. I could wish their Numbers were increased. And while we are, as I may call it, Scouring our Planet, by clearing America of Woods, and so making this Side of our Globe reflect a brighter Light to the Eyes of Inhabitants in mars or Venus, why should we in the Sight of Superior Beings, darken its People? why increase the Sons of Africa, by Planting them in America, where we have so fair an Opportunity, by excluding all Blacks and Tawneys, of increasing the lovely White and Red? But perhaps I am partial to the complexion of my Country, for such Kind of Partiality is natural to Mankind.
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