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.
Just watched THE PATRIOT. Mel Gibson’s character said “An elected legislature can trample on a man’s rights just as much as a king can.” How true today.
The GA judge is Iranian?
Law of Nations is not relevant at this point.
Wong Kim Ark rejected in the lower court because of controlling authority.
SCOTUS affirmed without exception.
DING DING DING... we have a winner. Yes, apparently so.
I wonder how many family members he has in Iran.... was there a quid pro quo here? Inquiring minds want to know.
But the fact that there was a dispute strongly suggests that the 14th Amendment did not resolve that issue. The decision closest to the 14th Amendment did not claim that the 14th Amendment spoke to the definition of “natural born citizen”.
Wong Kim Ark didn’t even try to find out the meaning of the common law AT THE TIME OF THE SIGNING OF THE CONSTITUTION. It used as its source somebody explaining the then-modern British Nationality Act - even though the WKA court had acknowledged that the authority at the time the Constitution was written was VATTEL (who contradicts the source they cited).
That’s basically like looking to the modern definition of “gay” to find out how to understand the lyrics, “When Irish eyes are smiling, all the world seems bright and gay...”
Your knowledge regarding the Law of Nations is what you’ve been conditioned to know.
“Your knowledge regarding the Law of Nations is what you’ve been conditioned to know.”
All I need to do is READ the lower court of Wong Kim Ark who REJECTED Law of Nations using THOSE VERY WORDS.
“Wong Kim Ark didn’t even try to find out the meaning of the common law AT THE TIME OF THE SIGNING OF THE CONSTITUTION.”
Yes it did. It went back to 1609, and worked its way forward.
There is no denying that the colonies used the phrase ‘natural born subject’ all the time. And in the years following the Constitution, they used it interchangeably with natural born citizen, or native citizen.
Again, quoting from the decision birthers usually avoid reading:
“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.”
Also:
“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.”
And:
“n 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.”
And
“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.”
BTW - the word Vattel is not found in WKA. If it referenced him, it certainly did NOT acknowledge that Vattel was the authority on citizenship. Remember, according to Vattel, it doesn’t matter where you are born, but to whom. US law has NEVER followed that principle.
I evaded nothing. I explained the ruling, IIUC, as interpreting the 14A to have made WKA a 14A citizen at birth, a new subclass of citizens at birth that needed clarification after the passage of the 14A. This is the subclass of citizens at birth, children of aliens and foreigners, about which the Minor court said there were doubts, but which could not reach to resolve at the time.
WKA was correct in resolving those doubts in favor of WKA being a 14A citizen at birth, IMO.
IIRC only had to do with the Indiana electors in the 2008 election and since that election was certified...case closed.
It will be much more effective to contest Barry's ballot eligibility from scratch for 2012, not after the horse is out of the barn from 2008, IMO. Contest that and also any evidence of criminal forgery, such as we hope Arpaio is developing.
Lord Coke and the Calvin’s case is quoted more than once. All the judges in England heard that case. It was a seminal case and heard long before the writing of the Consitution. King James was from Scotland. This case was a very important case and changed the nature of who could own land .
“THE children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.”
That was written in 1769 - shortly before the Revolution. Blackstone was considered the authority on English common law.
http://avalon.law.yale.edu/18th_century/blackstone_bk1ch10.asp
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.
Too bad the Ankeny Court did not read the brief written at the time in the language of the time by The United States of America in the Wong Kim Ark case.
Here is another example:
“2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural born subjects within the realm of England.”
It comes from the The Declaration of Rights and Grievances, written by Congress to protest the Stamp Act.
http://www.usconstitution.net/intol.html
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?
You stated “WKA was a correct decision”.
Do you believe the children of aliens or an alien should be a citizen if born in the US?
Yes or No.
“Resolved, that by two royal charters, granted by King James the first, the Colonists aforesaid are declared intituled to all the Privileges, Liberties & Immunities of Denizens and natural-born Subjects to all Intents and Purposes as if they had been abiding and born within the Realm of England.”
From House of Burgesses on May 30, 1765, as written by Patrick Henry.
http://research.history.org/pf/declaring/henrysResolutions.cfm
I don't accept your framing of the question.
Under our Constitution, SCOTUS gets to make that call, whether I like it or not (belief has nothing to do with settled SCOTUS rulings, IMO) and they made that call in WKA...deciding that WKA’s parents WERE subject to the jurisdiction of the US by being domiciled here at the time of WKA’s birth and therefore WKA was a 14A citizen at birth.
I do not BELIEVE this applies to Obama...meaning that I believe that if the facts of Obama’s alleged birth came before SCOTUS, Obama would NOT be a 14A citizen because his father was a non-immigrant foreign exchange student.
I reserve the caveat that I BELIEVE that SCOTUS would grant Obama a mulligan and allow him to be NBC at birth if Obama argued that his mother was single at his birth and only had unitary US citizenship due to the bigamy of his father.
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