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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.
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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