Posted on 04/29/2011 3:15:09 PM PDT by llandres
No wonder so many people are confused, or ignorant, about this subject and its Constitutional importance relative to Presidential eligibility. This first link - http://www.c-spanvideo.org/program/PlaceR - is a 9 min. interview with Peter Spiro, a Temple University law professor, by the day's cspan moderator. Listen to the questions and his answers. Sheesh.
Here's another link to the Washington Journal segment that followed, with call-ins and emails, titled, "Should U.S. presidents be 'natural born' citizens?"
http://www.c-spanvideo.org/program/OpenPhones7290
Should? Should??? Folks, this is what we're up against - ignorance, misinformation, apathy or a combination thereof.
Why is that surprising? There can never have been such a decision because no such case could have ever come before the court. We never had a usurper before.
It isn’t surprising to me. It is the next sentence in the text that was omitted by the guy who posted it first.
If the electorate was educated, Hussein would have never had the chance to usurp. If elected officials, had what it takes to lead instead of what it takes to take what they can from Americans, they’d have declared Hussein was not eligible due to parentage.
The electorate is not educated.
I said this on another thread: BO should be sticking out like a sore thumb. Why isn't he? Because the electorate isn't educated. The electorate is apathetic. The electorate has developed a sense of amnesia of what it is to be an American and what a real American (HINT: It's NOT about skin color or race!) looks like.
So this anonymous opinion is supposed to mean more than the majority in Venus 12 U.S. 253, 289 (1814), wherein Justice John Marshall said:
“Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says ‘The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.’”
That is pretty straightforward it seems to me: “The natives or indigenes are those born in the country of parents who are citizens.”
To put it succinctly, kittens born in a breadbox are not loaves of bread by virtue of such a birth location.
Similarly, if Mexicans produce a child it is NATURALLY a Mexican, even if born in the United States. The United States may CHOOSE to grant citizenship to children so born, but that is a statutory act, and remains subject to the will of the legislature to modify or repeal at will.
No legislature can change what it means to be a natural born citizen, any more than it can repeal the law of gravity or transform kittens into baguettes.
http://www.freerepublic.com/focus/bloggers/2702976/replies?c=1123
(this works for me better, at least in my mozilla version 3.16.17)
This is the old strict-construction-versus-living-document issue. While it might be true that most law schools tend to be dominated by liberal professors who fall into the living document camp, they should all at least give lip service to the alternative viewpoint, if only because there is a significant amount of legal theory and precedent that favors the strict constructionist camp (yes?) (IANAL...).
John Valentine, the 1844 decision was not anonymous. If you would read, the author is clearly identified. The WKA decision, which is also pretty clear and which you dislike and therefor wish to ignore, wrote:
“That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.”
They, at least, knew who wrote it.
JV prefers “The natives or indigenes are those born in the country of parents who are citizens.” While that might be his personal preference, it has no bearing on US law - in spite of JV’s misuse of the Venus case.
Why did Justice John Marshall use Vattel in discussing the Venus case? Because the Venus case was about this:
“This is the case of a vessel which sailed from Great Britain with a cargo belonging to the respective claimants, as was contended, before the declaration of war by the United States against Great Britain was or could have been known by the shippers. She sailed from Liverpool on 4 July, 1812, under a British license, for the port of New York and was captured on 6 August, 1812, by the American privateer Dolphin and sent into the District of Massachusetts, where the vessel and cargo were libeled in the district court...
...The great question involved in this and many other of the prize cases which have been argued is whether the property of these claimants who were settled in Great Britain and engaged in the commerce of that country, shipped before they had a knowledge of the war but which was captured after the declaration of war by an American cruiser ought to be condemned as lawful prize. It is contended by the captors that as these claimants had gained a domicile in Great Britain, and continued to enjoy it up to the time when war was declared, and when these captures were made, they must be considered as British subjects, in reference to this property, and consequently that it may legally be seized as prize of war in like manner as if it had belonged to real British subjects.”
The Venus case was not about something that happened in the USA, where US law applies. It was a matter of INTERNATIONAL LAW - a matter of the “Law of Nations”. When discussing what is legal on the high seas, international law applies - not the US Constitution. The US Constitution recognizes that
by giving Congress the power to “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations” - because the Law of Nations - INTERNATIONAL LAW - applies on the high seas.
The dicta of Vice Chancellor Sandford has held up for over 160 years. As Sanford noted, no one in any state ever asked a would-be voter if his father was a citizen. No one applying for a passport was asked about his father’s citizenship. If he was born in the US, that was all that mattered under US law.
I’ll repeat: in the USA, there was no legal basis for saying citizenship by parentage was primary over citizenship by birth! No state government and no federal law ever suggested someone born in the US was only a citizen if their father was a citizen.
Vice Chancellor Sandford points out that the states, prior to the Constitution, had already started revising their laws to replace “natural born subject” with “natural born citizen”. The WKA decision discusses a number of state decisions recognizing that NBC = NBS. At the time of Independence, every NB subject became, in the law, a NB citizen. 100%.
Birthers and WorldNutDaily like to pretend that the phrase NBC sprang out of nowhere, or that it came from a bad translation made 10 years after the Constitution. It didn’t. Many of the writers of the Constitution and many of the states ratifying the Constitution had already started switching the wording in their laws, but none of them had changed the meaning. Everyone who had been a NBS automatically was a NBC.
That was US law, and no one tried to claim it wasn’t until the Lynch case in 1844. And they lost the case.
READ Lynch. Read WKA. You are not required to like them, but the courts have not followed Vattel on citizenship. Some people thought they should, but the courts have consistently followed the Lynch decision, not Vattel. Vattel wrote on international law, not the law of the USA.
That is why the Indiana court wrote:
“The Plaintiffs do not mention the above United States Supreme Court authority in their complaint or brief; they primarily rely instead on an eighteenth century treatise and quotations of Members of Congress made during the nineteenth century. To the extent that these authorities conflict with the United States Supreme Court’s interpretation of what it means to be a natural born citizen, we believe that the Plaintiffs arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true when reviewing the grant of a motion to dismiss for failure to state a claim.”
As for Wong Kim Ark:
http://www.oilforimmigration.org/facts/?p=6665
Read the original sources. They are understandable. When Wong Kim Ark is raised, that is a common Obot smokescreen. Horace Gray was appointed by the only other usurper to sit in the White House, Chester Arthur, and his decision only applied to citizens, not natural born citizens. It is a confusingly-written document, but eventually cites Minor v. Happersett in which Vattel is cited. Since Wong Kim was never presumed to be a natural born citizen – he was born in San Francisco but of non-citizen parents – natural born citizenship was not at issue, and not determined. Some think Gray was creating smoke to protect his appointee.
As for Lynch v. Clark:
Lynch v. Clark, (1844) 1 Sandf.Ch. 583 (NY) is a New York state jurisdiction case, which therefore is not definitive for federal jurisdiction, and in particular the Supreme Court.
As for practice, your arguments do *nothing* to explain why *both* Chester Arthur and Barack Obama took pains to hide their formal legal status as children of non-US-citizen parents. You also do not contest any of the founding documents or the founding fathers, who seem to favor Vattel’s definition over the English Common Law definition of a natural born *subject* and subsequent and possibly erroneous (from the point of view of the founding fathers) *equivalence* of the terms NBC and NBS.
(Standard disclaimer, IANAL...)
First, all decisions are limited strictly to what is needed. That includes all the decisions that birthers quote as well. The opinion of the court, explaining the decision, is dicta. When birthers quote the Venus case out of context, they are quoting dicta, not the formal ruling.
Dicta influences other courts, or not - depends on how well the dicta is done.
“There are multiple subtypes of dicta, although due to their overlapping nature, legal practitioners in the U.S. colloquially use dicta to refer to any statement by a court that extends beyond the issue before the court. Dicta in this sense are not binding under the principle of stare decisis, but tend to have a strong persuasive effect, either by being in an authoritative decision, stated by an authoritative judge, or both. These subtypes include:
* dictum proprium: A personal or individual dictum that is given by the judge who delivers an opinion but that is not necessarily concurred in by the whole court and is not essential to the disposition.
* gratis dictum: an assertion that a person makes without being obligated to do so, or also a court’s discussion of points or questions not raised by the record or its suggestion of rules not applicable in the case at bar.
* judicial dictum: an opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision.
* obiter dictum in Latin means “something said in passing” and is a comment made while delivering a judicial opinion, but it is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).”
http://en.wikipedia.org/wiki/Dictum
You will note the dicta in the Minor case, often used by birthers to prove their point, is “gratis dictum: an assertion that a person makes without being obligated to do so, or also a court’s discussion of points or questions not raised by the record or its suggestion of rules not applicable in the case at bar”. The judge mentions it in passing, having heard no arguments about it, and then leaves it because it doesn’t apply to the case at hand.
In Lynch and WKA, we have “judicial dictum: an opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision”. The courts heard arguments, and based their final ruling on the arguments in their opinion.
The dicta from Lynch and later WKA has been very influential because of the power of the argument. Natural born subject had a very well defined meaning. At independence, all NBS in the colonies automatically became natural born citizens, with no exceptions or changes. The state courts and legislatures began making the change in terminology. When the Constitution was written, were the Founders thinking about Vattel’s indigene, and merely forgot to say indigenous? Or were they thinking about their state laws and the well known and well defined term ‘natural born subject’, which had been used in colonial law for over a hundred years?
Lynch and later WKA decided they were thinking about the well defined term NBS, and NOT Vattel’s term ‘indigene’. That has carried weight in the courts because it makes sense. And for 160+ years, courts have ruled IAW the Lynch decision and for 110+ years the WKA decision.
“As for practice, your arguments do *nothing* to explain why *both* Chester Arthur and Barack Obama took pains to hide their formal legal status as children of non-US-citizen parents.”
You mean we didn’t know before 2009 that Obama’s father was a man named Obama? Tell me - just what last name do you think Obama ran under...
First, I note in passing that you are quoting a wiki definition of dictum, and not a judicially recognized *legal* definition of dictum such as Black’s 6th (specifically, p. 465). (Please correct me if the courts are in a habit of quoting Wikipedia in their arguments.) I find that somewhat revealing of your legal scholarship...
Anyway, I do agree (FWIW) that dicta is not regarded as binding under stare decisis.
Furthermore, I think everyone is in agreement that the full-on direct question of the definition of NBC has never been formally adjudicated by the USSC.
I do not think the strength of the birther’s arguments rests strictly on the form of dicta that they use to buttress their arguments. They also rely on strict construction arguments, that is, arguments of the type that are commonly employed in federal jurisdiction appellate law. Those types of arguments are valid as far as they go because they tend to replicate the type of thinking that federal appellate law and the USSC in particular would employ when making a stare decisis decision on the definition of NBC.
So I would not artificially restrict the playing field just to what the courts have said thus far, particularly because of the lack of stare decisis in NBC. Arguments that will win at the federal level will not be thus artificially restricted as might be implied by your arguments thus far.
You may want to take the *best* arguments the birthers have put forward in the arena— including quotes by the founding fathers— and argue against those, if you can. Apparently you can’t because you have not done so thus far, and I find it difficult to believe that you would not have already done this if you had had the logical ammo to do so (or am I being overly charitable towards you? if so, my apologies).
Please note that the collective-right view of the Second Amendment was commonly believed to be correct from about 1964 until the issue finally reached the USSC in 2008. At that time, interpretations of the stare decisis supporting the collective-right view dating from about 1942 until 2008 tended incorrectly to support the collective-right view over the standard model view vindicated by the USSC in 2008. So there is historical precedent that not only dicta but lower court stare decisis is not by any means a final arbiter of fundamental constitutional questions such as the definition of NBC.
So your arguments, such as they are, are not only weak, but incredibly weak.
As for whether or not we knew before 2009 that Obama’s father was a man named Obama, please recall that I wrote “formal legal status.” Before Trump pressuring Obama to release a long form a couple of days ago, none of us knew what Obama would claim to be his legal parents; in particular, we only had crude photoshopped images published on a campaign website and an autobiographical book which is not a sworn affidavit made under penalty of perjury. We still do not have the latter, but we do now have Obama’s likely court strategy.
In fact, IMHO it would not be a big reach to imagine that Obama’s likely court strategy would follow the (incredibly weak) arguments you have presented here.
But as we all likely know, the first step of such a strategy would be to argue as much in the court of public opinion.
Have a nice day (have you hugged your Vattel lately?).
Standard disclaimer, IANAL.
BTW I forgot to mention that I am liking your sweater very much.
:-)
My children were both born on US soil. My wife is a US citizen, born in the US. I am not. Although, I am a citizen of a very friendly country. ;-) Can my children become president?
Excellent, that goes right to the picture! Thanks!
I am glad we are old enough to know what it means to be real Americans. I feel sorry for those who got brainwashed by public indoctrinators that posed as public school teachers in the years since I’ve been out of school. I was lucky to get all the way through college with not one bit of liberal trash put in my thoughts.
There was a young FReeper recently, who posted that he didn’t know what it was like in the good old days, when most Americans were proud of their country, even the democrats. He was born after the liberals took over most schools.
Now we are 2 Americas, the half who are liberal or just plain stupid, and the others patriots and old fashioned Americans. I would have to bet on us patriots to win the epic battle for America. We have strongly held beliefs, they have welfare checks and other government handouts.
They will largely be on their couches watching TV, while we will be continuing the fight to save our freedom.
Our army of patriots beats their slovenly bunch of spoiled lazy bums.
I pray good will overcome evil, and our country will be restored to one nation under God.
It will be a long road to change the strangle hold that liberals have on the schools. We have taken the first baby step at that here in Wisconsin and of course the public indoctrinators are squealing like stuck pigs. It will take many years to improve the public schools, maybe decades.
Of course if all those spoiled whining public teachers would quit (and they won’t, they have it too good even now) that would make the improvements way faster.
Just how is it that a man who tells the world his (supposed) father is Kenyan, is elected POTUS??? It only happened because not enough people knew that disqualified him, and those who did know and were in political power were too cowardly to speak up. And there were those who knew like Pelosi and others, who willingly went along with the treason.
There is lots of room in hell. God will separate the wheat and chaff.
LOL on the horse pic!
I think Mr.Ed was a conservative, though!
: )
Their status is in doubt. Does your nation of birth extend citizenship to your children, or even grant it automatically? Have they accepted this citizenship if offered? If so, then they’re not. They’re eligible for everything else, with the exception of being in the direct line of Presidential succession.
Also, if you read the link to the Lynch case, the judge gives a detailed review of the law concerning natural born subjects and natural born citizens, and concludes:
6. Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.
http://tesibria.typepad.com/whats_your_evidence/Lynch_v_Clarke_1844_ocr.pdf
Not even CLOSE to a "conclusion".
Did you notice that Lynch v. Clarke which you quote goes on for pages and pages and pages past that? Your quote is from p. 246.
Here are some other quotes from your OWN article...
which you conspicuously left OUT.
(p. 248)
“The inconsistency of holding that Julia Lynch is a citizen here, when it is conceded on all hands that by reason of her parents being British subjects she is also a British subject; was strongly urged. The inconsistency, however, IS nothing but the occurrence of a double allegiance, which exists in the tens of thousands of our naturalized citizens, who were once subjects of the crown of Great Britain. We recognize its existence, because we adopt them as citizens, with full knowledge that by the law of their native country, they never can put off the allegiance which they owe to its government. “
Hmmm, there's that dual-allegiance idea, right in your own pet case. Which is by definition relevant to the Presidency.
(p. 249)
“In this state, naturalized citizens are eligible to every public office, except that of governor. In most of the states, laws have been enacted to give aliens all or most of the rights of citizens, in respect of ,the acquiring, holding and transmission of property; and I believe in all of the states, there are frequent instances of such laws for the benefit of particular aliens and classes of aliens; while in several of them, the disability to inherit lands is entirely done away.”
The Lynch case concerned property rights, not eligibility for the Presidency...and running for political office is a privilege, not a right. (One is not "eligible" for redress of petitions, or free speech.)
(p. 255)
“I do not find that the rule derived from the public law, is so clearly in favor of the complainant, as was contended by him. Mr. Justice Story, who is familiar with the Continental writers upon public law, says ‘that certain principles (relative to national domicil) have been generally recognized by tribunals administering the public law or the law of nations, as of unquestionable authority. First; Persons who are born in a country, are generally deemed to be citizens and subjects of that country. A reasonable qualification of the rule would seem to be, that it should not apply to the children of parents, who were in itinere in the country, or who were abiding there for temporary purposes, as for health, or curiosity, or occasional business. It would be difficult, however, to assert, that in the present state of public law, such a qualification is universally established.”
(Story’s "Conflict of Law” 47, § 48.)
Recall that Barack’s dad was an Records: Obama’s father forced out of Harvard">illegal alien, subject to deportation who went back to Kenya, after Harvard and the govt. forced him to leave.
Game, Set, Match.
(I'm losing all respect whatsoever for Harvard, by the way.)
But wait...there’s MORE:
(p. 257)
“In 4 Dane’s Abridgement, 701, ch. 131 ; art. 2, § 8, he says: ‘And now, if an American citizen goes abroad and marries an alien wife, and have a child by her in a foreign country, that child is not alien, but may inherit his estate in the United States. But if an American woman, a citizen, go abroad and marry an alien husband, and have a child by him so born, that child is an alien, and cannot inherit her estate in the United States. And upon the same principle, if an English subject comes into the United States, and marries an American wife, and has a child by her *born here, it cannot inherit her estate here, because this child follows the allegiance of its father, and may inherit his estate in England.”* Manifestly a non sequitur, because in the case first put, the child, if born in England of an American father, unquestionably owes allegiance in England, is a subject of that country, and may inherit there. Yet he is, as the author says, a citizen of the United States also. And by the same rule, the child born here of the English father, is a citizen here, and may inherit here as well as in England. In short, both are cases of that double allegiance, which is effected by the rule of the common law, and which Mr. Reeves says is not a novelty, nor peculiar to that law.
See -- the problem is double-allegiance, which even YOUR source acknowledges. And Lynch doesn't settle that, it is a property rights case.
Nice try though, troll.
(And yes, I know your signup date. Who did you buy the account name from?)
Cheers!
No. Not Constitutionally. They are not natural born citizens if you were not a citizen when they were born. Sorry, them’s the breaks.
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