Posted on 01/27/2012 10:02:09 AM PST by Danae
I have emphasized the word “little” because the truth of the law on this issue is very simple, folks. So simple that the mystery is deciphered by application of one of the most clear, concise and undeniable rules of law; the code of statutory construction governs, and therefore, “natural born Citizen” must require something more than being born in the United States.
Let me put it to you in appropriately simple language:
Clause A = “Only a natural born Citizen may be President.”
Clause B = “Anyone born in the United States is a Citizen.”
(While these two clauses reflect Article 2, Section 1, and the 14th Amendment, I shall refer to them as “Clause A” and “Clause B” for now.)
The code of statutory construction is learned by every student in law school, and every practicing attorney has confronted it. Every judge is required to apply the rule equally to all statutes, and the Constitution. There is no wiggle room at all. The rule states that when a court examines two clauses, unless Congress has made it clear that one clause repeals the other, the court must observe a separate legal effect for each. More specifically, regardless of the chronology of enactment, the general clause can never govern the specific.
Clause B is a general rule of citizenship, which states that all persons born in the country are members of the nation.
Clause A is a specific clause that says only those members of the nation who are “natural born” may be President.
According to the rule of statutory construction, the court must determine that Clause A requires something more than Clause B.
It’s truly that simple. This is not some crazy conspiracy theory. It’s not controversial. This is not rocket science. Every single attorney reading this right now knows, beyond any shadow of a doubt, that I have accurately explained the rule of statutory construction to you. Any attorney who denies this rule, is lying. The rule cannot be denied. And its simplicity cannot be ignored.
Now let’s see what the United States Supreme Court has to say about the rule:
“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).
This is what I mean by no wiggle room – “The courts are not at liberty to pick and choose among congressional enactments…” Any court construing Clause A is not at liberty to assume that Congress intended to put the words “natural born” into Clause B. The general does not govern the specific, and the rule requires the court to “give effect to both if possible”.
Is it possible to give separate effect to both Clause A and Clause B?
Yes. The Constitution tells us that any Citizen can be a Senator, or Representative, but that to be President one must be a “natural born Citizen”. The Constitution specifically assigns different civic statuses to “Citizens” and “natural born Citizens”. Therefore, not only is it possible to give separate effect to both Clause A and Clause B, it is absolutely required by law, and no court has the ability to circumvent the rule.
Had the original framers intended for any “born Citizen” to be eligible to the office of President, they would not have included the word “natural” in the clause. Additionally, had the framers of the 14th Amendment intended to declare that every person born in the country was a “natural born Citizen”, then the 14th Amendment would contain clear and manifest language to that effect. But it doesn’t. Therefore, each clause must be given separate force and effect.
Deputy Chief Judge Malihi explained the rule of statutory construction in his denial of candidate Obama’s Motion to Dismiss, wherein his opinion of the Court stated:
“Statutory provisions must be read as they are written, and this Court finds that the cases cited by Defendant are not controlling. When the Court construes a constitutional or statutory provision, the ‘first step . . . is to examine the plain statutory language.’ Morrison v. Claborn, 294 Ga. App. 508, 512 (2008). ‘Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden. 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.‘ Blum v. Schrader, 281 Ga. 238, 240 (2006) (quotation marks omitted).” Order On Motion To Dismiss, Deputy Chief Judge Malihi, Jan. 3, 2012, pg. 3. (Emphasis added.)
Therefore, the term “natural born” must be considered as requiring something more than simple birth in the country. And Judge Malihi states, quite clearly, in his ruling above, that the Court “is not authorized to read into or to read out that which would add to or change its meaning.” The rule is the same for election statutes in Georgia as it is for the Constitution of the United States.
The rule of statutory construction, with regard to the Constitution, was best stated by Chief Justice Marshall 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.)
If the 14th Amendment was held to declare that all persons born in the country, and subject to the jurisdiction thereof, were natural-born citizens, then the “natural born Citizen” clause would be rendered inoperative. It would be superfluous. And its specific provision would, therefore, be governed by the general provision of the 14th Amendment. The United States Supreme Court has determined that it is inadmissible to even make that argument.
Any genuine construction of the “natural born Citizen” clause must begin from the starting point that it requires something more than citizenship by virtue of being born on U.S. soil. Minor v. Happersett, 88 U.S. 162 (1874), tells you exactly what that something is; citizen parents.
Leo Donofrio, Esq.
[For a more detailed analysis of this issue, please see my Amicus Brief entered in the Georgia POTUS eligibility cases.]
If you are a poster battling obots, or someone unfamiliar with the law and want to be better able to discuss why things are the way they are, or just want to understand the law better, this post of Leo's is one you can't miss.
PING to the Usual Suspects!
This post of Leo’s is brilliant! Enjoy!
This article is arguing for a third class of citizenship: native born but not natural born.
But, but.. What about the Commerce Clause, where the very general is held to require all kinds of specifics?
I wonder how any honest lawyer could argue against it.
I might even be inclined to say that...it's so easy, even a caveman could understand it.
With any due respect owed to any cavemen (or cavewomen) out there who may be ofeeeeended by that.
{:^)
Great explanation. Yes, I had some obot’s throwing the 14th amendment around just this week. They think they are so smart. And playing the race card has worked so well that the courts and Congress are both too timid to address his ineligibility, even Fox and other conservative pundits.
So, this applies how to Obama? There have been reports a plenty that confuse rather than assure who his biological father even is. This clause business as posed by Leo has teeth, but we want to see it prevail in Georgia courts against the Obama arguement against it. Much smoke and many mirrors will be let, in order to obfiscate and delay that meeting in court before the election.
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 [p168] 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. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.
So maybe you can explain why the court made a point of emphasizing that it is sufficent to base its argument on ONE class of citizens specifically defined as having citizen parents. Why did the court do that??
Kind of explains why democrat apologists always push the "living Constitution" meme.
A living construct can evolve and change form to better suit evil doers.
A case in —iirc— Indiana recently broke the clear reading of the law as Leo has stated it. Sadly, it appears that teh SCOTUS under the pirate Roberts’ control is more than willing to allow that for the affirmative action Pres—ent he is protecting. If the courts functioned as purely as Leo’s fine description, the Republic would still be functioning under the Constitution. But it hasn’t been restrained by the Constitution for quite some time ... fantasy penumbras are the new Amendments.
Wrong ... but expected.
Holy mackerel. Shouldn’t the EPA also have some say in this litigation? I’m sure there must be a wet spot somewhere! LOL!
Bookmark bump
Well, I'm an attorney, and I've never heard of some proper noun, specific "Code of Statutory Construction". There are plenty of what normally are referred to as rules of construction, or principles of statutory construction, but I've never heard them referred to as a Code except when said "Code" is specifically enacted as part of legislation in a particular state. Most lawyers know that a Code refers to something formally enacted into law. Of course, that is an impossibility when we're talking about the Constitution, because the Constitution isn't a "statute", and its interpretation can't be governed by some subsequently-passed "Code". If someone is going to argue legal technicalities, they ought to get their terminology correct.
Second, I am familiar with a general rule of construction that corresponds to the "Code of Statutory Construction" the author claims to be citing. So in substance, he's at least right about the existence of such a principle of construction. That the specific controls the general is an accepted rule/principle.
But third, he is simply wrong to the extent he believes that rule compels the conclusion he offers. Either it's bad lawyering, or he's being disingenuous.
For the rule to apply, the second clause must be argued as changing the meaning of the first. If someone argues that Clause B changes the meaning of Clause A, then his argument that this cannot be the case is correct, because the specific governs the general. To the extent someone is arguing that, this point is correct.
The problem is that this ignores the most common argument --that the 14th doesn't change the original meaning of the NBC clause at all, but rather, is consistent with that original meaning. If you argue (as many do)that "natural-born citizen" was intended to draw a distinction between 1) people who were citizens at birth, and 2) people who were naturalized after birth, then the 14th Amendment didn't change the meaning of the NBC clause at all. Rather, it just changed the definition of who was a citizen at birth, but did not change at all the distinction between those who were citizens at birth, and those who were naturalized. The NBC still has its original meaning of barring naturalized citizens from the Presidency.
Now obviously, this put us right back to where we've always been in this dispute, which is whether the Framers were intended to incorporate De Vattel's definition, or the common-law English one, of citizenship. If the former, then the author is correct. If the latter, then he's not. And since people still disagree about this, this article doesn't really advance the ball at all. We're still left arguing over whether the De Vattel interpretation is correct, or not.
This is exactly the reason why anyone that fights for Obamas right to be on any ballot will only fight by stating this judge has no right to claim he is ineligible due to constitutional reasons. This is beyond his scope of practice.
They would never want this issue to be fought! They prefer to use every law in the book to smack it down rather than just getting this constitutional issue on the table and dealt with.
Why not since we have a divided nation on this subject don’t we just put this to rest and have it ruled on? It would be the easiest way to just end this whole dilemma! Instead we have to fight tooth and nail just to get a judgment on this issue.
We have to end the I’m right - you’re right mentality on this issue. Of course I wish to be right (2 citizens make natural born), but I am willing to truce if SCOTUS rules against this. Why are they not willing to state the same? Because I believe they know we are right!
You are naturalized automatically if born in the U.S. You are not Natural born automatically! Still 2 forms of citizenship! One that can be President and one that can not!
Here’s a dirtier little secret. See how many times bills have been introduced ammending the Constitution to allow non NBC’s to hold the office of President of the US. Bills introduced by both Rep.s and Dems. We are being screwed folks.
http://www.youtube.com/watch?v=H3aCfR8rmrw
Whoever is the GOP nominee they should provide ample public proof that they were born in the US of parents who both were US citizens and then challenge Obama to provide the same information. However the GOP has become little more than the court eunuchs in emperor Obama's court so I see little chance of that happening.
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