Posted on 06/15/2010 10:48:31 AM PDT by rxsid
"Tuesday, June 15, 2010
The Kerchner et al v. Obama/Congress et al Appeal to the Third Circuit to Be Decided on the Briefs with No Oral Argument
The Third Circuit Court of Appeals which sits in Philadelphia has notified me today by letter dated June 15, 2010 that there will not be any oral argument on the Kerchner appeal to that Court. The case will be submitted on the briefs on Tuesday, June 29, 2010. Our presence is therefore not required.
The Court also informed me that the Third Circuit Panel that will decide the appeal will be comprised of Circuit Judges Sloviter, Barry, and Hardiman.
The court can call for oral argument when it has questions. As we know, the Federal District Court granted Obama’s/Congress’s motion to dismiss the complaint/petition for lack of standing and political question. The Kerchner plaintiffs have appealed that decision to the Third Circuit Court of Appeals. On a motion to dismiss the complaint on its face for lack of standing and political question, both the trial and the appeals courts are supposed to accept the facts alleged in the complaint/petition as true and in a light most favorable to the non-movant. We have alleged and shown that Obama is not and cannot be an Article II "natural born Citizen" because he was born a subject of Great Britain through descent from his British subject/citizen father who was never a U.S. citizen, making Obama born with dual and conflicting allegiances if he was born in the U.S. or with sole allegiance to Great Britain if he was born in Kenya. We have also alleged and shown that Obama has not conclusively proven that he was even born in Hawaii. Obama and Congress have presented no evidence or argument to the Federal District Court or to the Court of Appeals contesting these arguments. The issues of standing and political question are well briefed. We have presented in our briefs how the Kerchner plaintiffs have standing and how the Obama eligibility issue does not present any objectionable political question for the Court. Hence, the Court might not have any questions and so it did not see any need for oral argument.
Of course, it is our hope that the Third Circuit Court of Appeals reverses the decision of the Federal District Court which dismissed the complaint/petition for lack of standing and political question and returns the Kerchner case to the District Court for discovery and trial. If the Third Circuit Court affirms the District Court, we will then be filing a petition for certiorari with the United States Supreme Court which will have the final word in any event.
Mario Apuzzo, Esq."
http://puzo1.blogspot.com/2010/06/kerchner-et-al-v-obamacongress-et-al.html
Being eligible for the Office of President, is not a privilege of citizenship. If it was, Arnold could be President, but he can't.
Some persons born US Citizens are considered naturalized for Constitutional purposes. Namely those born abroad (unless the parent(s) were abroad in the service of the country, such as diplomats or military). They are citizens because of the operation of a statute, and are not covered by the 14th amendment's "born in the US" provision. Since Congress only power over citizenship is through the naturalization rule(s), they must be naturalized or Congress could not have made then citizens, at birth or otherwise. So says the Supreme Court. (except for the "of diplomats..." exception, which AFAIK has not been tested at the SCOTUS.)
It's not the dual citizenship, per se, it's the lack of being a natural born citizen. That is what the requirement says. The question then becomes, what did *they* understand the term to mean. Not what someone thinks it means today, or in some context other than Presidential eligibility.
There is much evidence to indicate they understood it to mean "born in the country of parents who are citizens". (With some exception for those born abroad of fathers in service to the country, such as diplomats).
It doesn't allow anything. It prevents the goverment from infringing upon a right of the people. Like you said, read the words.
Even before the 14th amendent was passed, white people born in the country were citizens at birth. But "all persons" were not. The 14th merely prohibited discrimination in citizenship matters. Some guy with an English or French citizen father and US mother, would not have been a natural born citizen. In fact he'd have been the very sort of person that the founders were trying to keep out of the office of President.
“It doesn’t allow anything. It prevents the goverment from infringing upon a right of the people. Like you said, read the words.”
Preventing the government from infringing upon our rights is allowing us to keep and bear arms.
“allow: v. al·lowed, al·low·ing, al·lows. v.tr. 1. To let do or happen; permit”
Which isn’t to imply that our rights derive from the Consitution. They are God-given, and the law only protects them. Nevertheless, if it were enough that it is our right, we would not need any law to protect it. And yet we have a law, and it seems to be generally celebrated by those who believe in natural rights. They recognize, as do I, that though our rights can never be circumscribed by positive law, it is useful to use positive law to protect our rights. Madison was correct, theoretically, in arguing against the point on the grounds that it would tend to trick everyone into believing our rights were few and enumerated. But theory is theory and practicality is something else. And in that sense, positive law “allows” or “permits” us to retain our rights.
You can speak against it as loose talk; however, seems to me that generally those who believe in natural law celebrate the second amendment, even though it is not the right to keep and bear arms itself, but merely the means by which we inform government of its duty to allow us said right.
“because the Anglo-Saxon aka ancient Rome definition of fatherland/county is”
Saying that Anglo-Saxons are also known as ancient Romans is a supremely stupid statement.
Me: “People born U.S. citizens possess all privileges of citizenship”
You: “Being eligible for the Office of President, is not a privilege of citizenship. If it was, Arnold could be President, but he can’t.”
Arnold wasn’t born a U.S. citizen, you obfuscater.
“Some persons born US Citizens are considered naturalized for Constitutional purposes.”
No they aren’t, and you can’t point to one law or court decision that says so.
“Namely those born abroad...They are citizens because of the operation of a statute, and are not covered by the 14th amendment’s “born in the US” provision. Since Congress only power over citizenship is through the naturalization rule(s), they must be naturalized or Congress could not have made then citizens, at birth or otherwise”
There is no such thing as naturalization from birth. That is an entirely fictitious category. You see the distinction as being through the use of a statute, which is positive as opposed to natural law. However, there is really no such thing as a citizen of the U.S. by nature. The U.S. exists by virtue of positive law, namely the Constitution. Before the Constititution, there was no U.S., and without it there is no U.S. Therefore, though it’s not a “statute,” it is nonetheless man-made—or un-”natural.” And if citizens from birth via Congressional enaction are naturalized, I submit that people born citizens by virtue of the Constitution are unnatural as well.
The 14th amendment did not change the meaning of “natural born” citizen. It didn’t even use the term.
Even before the 14th amendent was passed, white people born in the country were citizens at birth. But “all persons” were not. The 14th merely prohibited discrimination in citizenship matters. Some guy with an English or French citizen father and US mother, would not have been a natural born citizen. In fact he’d have been the very sort of person that the founders were trying to keep out of the office of President.
And from the actual decision concerning Miss Elg in “Perkins v Elg” (1939):
“And the mere fact that the plaintiff [Elg] may have acquired Swedish citizenship by virtue of the operation of Swedish law on the resumption of that citizenship by her parents does not compel the conclusion that she has lost her own citizenship acquired under our law….”
The Supreme Court declared Miss Elg “to be a natural born citizen of the United States,”
http://supreme.justia.com/us/307/325/case.html
In Elk v Wilkins, 112 U. S. 94 (1884) The Supreme Court equated the terms “citizenship by birth” and “natural born citizen;”
They said:
“The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the constitution, by which ‘no person, except a natural-born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of president;’ and ‘the congress shall have power to establish an uniform rule of naturalization.’Const. art. 2, § 1; art. 1, § 8.”
http://supreme.justia.com/us/112/94/case.html
I would agree that it would be a very good idea for Congress or the Supreme Court to rule on whether a “Citizen-at-Birth” is also an Article 2, Section 1 “natural born citizen.” No such clarification has ever been made in law or in ruling by the High Court.
Current US law does not penalize a minor child who automatically inherits foreign citizenship from being considered a natural born citizen. The issue would only be relevant once the child reaches the age of majority and if the child makes an affirmative act to establish foreign (dual) citizenship; like voting in a foreign election or joining a foreign military.
“There are may forms of law in which positive is but one.”
There are other forms of law, obviously. Common law, for instance. The Constitution is not one of those other forms of law.
It was bad argumentative form for me to prove that not all positive law is an governmental expression of natural law by pointing to the contrast between man-made law with natural law and leaving it at that. However, your comment that “positive law is the law of nature written & adopted by governments for the use in a civilized society,” remains outrageous. It is often anything but that. The example of the Supreme Soviet still stands.
It is your statement that is supremely ignorant. You can not understand & interpret the language of your forefathers without studying where it was derived from. Do you think they just pulled it our of thin air? According to your answer, that would be my guess.
When was this codified? Date, Bill number, sponsor, co-sponsor, official language of the bill? And please don't point to the Cornell law site or any other, direct us to a link of the actual bill in the congressional archives. If you can't this is merely an opinion, and NOT LAW! For crying our load, you can't even work in the white house until you formally renounce any foreign allegiance you born with, so when did Obama formally renounce his foreign birthright citizenship?
“The question then becomes, what did *they* understand the term to mean. Not what someone thinks it means today, or in some context other than Presidential eligibility.”
Yes, I know. It so happens that some people think that since their intent was to prevent people with split loyalties from being president, it follows that “natural born citizen” must mean the child of two citizen parents. However, that is not necessarily so. It could be—and in my opinion was—the case that “natural born citizen” meant nothing but to be born a citizen, and that whether or not at the time of the Constitution’s original passage only the children of citizens were born citizens (though it may well have been the case) is irrelevant in light of the 14th amendment’s invocation of jus soli.
We have here two competing interests: what the Constitution says and what I shall call the indirect intent of those who wrote it. Originalists easily fall into the trap of treating the intent as the law itself. Which can be valid, since being overly literal causes one to lose the forest for the trees. But there is clear danger in the other direction, especially as the ascribed intent gets more and more indirect. Them not wanting presidents to have split loyalties is one thing. Treating the clause as if it says “no person with split loyalties shall be eligible for the office of the presidency” is quite another.
This or that clause was meant to do that, which would affect that, and hopefully bring about that and that and that. At what point do you stand back and say, hold on, we can’t interpret the text according to the Framer’s forecasts. We have to understand that they can be wrong. And often were, given the myriad ways in which the Constitution’s performance differed from what they expected. In other words, they were wrong a lot. Their system for presidential elections, for instance, didn’t last past two administrations.
“There is much evidence to indicate they understood it to mean ‘born in the country of parents who are citizens’”
14th amendment!
“where do you think their language was derived from?”
Whose?
“It is your statement that is supremely ignorant. You can not understand & interpret the language of your forefathers without studying where it was derived from. Do you think they just pulled it our of thin air? According to your answer, that would be my guess”
Please, could you clarify which statement of which you speak?
The society of the state which man joins must have laws. These laws are termed positive because they are enacted for the special society in which they are to have force. They are the outgrowth of man's nature to meet such emergencies and promote such prosperity, as the general utility of the society demands. They have a particular application to the defined territory of the society.
The term positive is used in contra-distinction to natural, which natural law man restricts by the positive law, to meet such rules of conduct as will best govern the members of society in their relations to each other. These laws of the society, which are termed positive, are the fabric of the government, which is an institution of man.
The natural law is universal, the positive law is territorial.
However so much the positive law of one society may differ from the positive law of another, the rule is: that, in either case, the laws are enacted for the common good of the members of the society within which territory the laws are enacted. It is not open to one society to do any act by which to make any change in any existing law which governs in another society. Such laws are purely autonomous and do not concern other societies. This is the general rule which governs among civilized countries. In the interests of humanity argued from the standpoint of religion there are many instances of interference on the part of civilized societies in the affairs of barbarous and irreligious communities. Nor can countries debar themselves from intercourse commercially with other countries. This position was taken by Great Britain and the United States in regard to China and Japan, both of which countries were forced to open their ports for trade with the civilized world and for reason of the rule which follows: “As the laws of each particular state are designed to promote its advantage the consent of all or at least the greater number of states may have produced certain laws between them. And in fact it appears that such laws have been established tending to promote the utility not of any particular state but of the great body of the communities.”
“If mere birth was the case, then why the need for the grandfather clause and why the distinction between citizen & NBC?”
You know why the grandfather clause was necessary. Because there was no U.S. until the Constitution was ratified in 1789. Hence, no one born before 1789 was born a U.S. citizen. Without some special dispensation, no one on earth or elsewhere could’ve been president before 1824.
The distinction between citizen and NBC derives from the fact that there is such a thing as naturalization.
But nobody here are forcing you to participate. You have the free will to ignore all those "year-old nonstories/conspiriracy theories" unless it pleases you greatly to participate and make them controversy, right???
Exactly. It’s amazing how much sophistry is spun about the grandfather clause when its reason for being is self-evident.
“They are the outgrowth of man’s nature to meet such emergencies and promote such prosperity, as the general utility of the society demands.”
Perhaps. Or maybe they’re the instrument by which one class dominates another. Or maybe they’re for the benefit of a single tyrant. Maybe they’re the result of a misguided philosophy which is good for no one.
“the rule is: that, in either case, the laws are enacted for the common good of the members of the society within which territory the laws are enacted”
That is nonsense. It’s not even the case that they are always intended as such.
“This is the general rule which governs among civilized countries.”
Well, that’s a little escape clause there, isn’t it? You can go ahead and exclude the Soviet Union from “civilization,” thereby denying their proclaimations the positive law label. Which is reserved for enlightened nations like our own, which never, ever promote anything but the good of the whole (just ask black people).
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