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.]
You clearly do not know what you are talking about.
I can CITE law.
The British Nationality Act of 1948
Obama is NOT a British citizen if his mother was in a VOID marriage (as in Sr was married to Kezia) or she was not married.
YOU cite the law that says he was a British Citizen if Sr was already married.
Sigh, AGAIN you do not know what you are talking about.
It was easy to get legally married in Kenya. It did not have to be recorded with the government.
In fact, there was a law in Kenya about mixing two types of marriages.
The tribal marriage of Sr would have been recognized in Britain.
There is quite a bit of info on this subject because of the extent of England’s reach over various countries- some of which had tribal marriages.
Give me the EXACT paragraph that you are referencing.
In case you missed it, WKA spends a great deal of time talking about natural born citizenship and the common law.
The question before them brought by the appellent IN THEIR BRIEF was whether Wong Kim Ark was a natural born citizen as per the RULING of the lower court as OUTLINED IN THE BRIEF
Both courts Rejected VATTEL.
The ONLY reason they brought up Minor is to show that
“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.”
Resort must be made elsewhere.
Where elsewhere???
Vattel’s Law of Nations??? NO
Common Law.
From there a great deal of discussion is done . What does that discussion indicate?
Vattel is right????
OR
Common Law Doctrine shows that Ark was a natural born citizen.
And I would say Justice Fuller is more learned than you. He heard the oral arguments. he read the brief. He used language that was in use at the time. He was there. You weren’t.
He knew exactly what was happening in that majority opinion and dissented. He did not agree that Ark should be able to Run for President BUT THE MAJORITY OPINION WOULD ALLOW IT TO HAPPEN. He flat out says it in the dissent.
Again, give me a RULING that says the lower court can make up whatever they want and SCOTUS precedent is not binding.
Television interviews are not BINDING.
Show me the RULING from SCOTUS.
So some Justices have a debate about the Miranda Warning. Does that mean that now the lower courts don’t have to follow the PRECEDENT because two Justices don’t agree.
Also, how about this.
Say Reid and Boehner decide to pass a law that now one needs to be mirandized in any form. The Constitution never uses the term Miranda . It doesn’t outline a Miranda warning. This overturns SCOTUS.
Who wins on that one????????
That should be the Congress decides now that NO ONE needs to be Mirandized and they can be arrested, thrown in jail, interrogated , and NEVER be Mirandized.
After all, Rehnquist said that the Miranda warning is part of our culture. Just about everyone knows about Miranda warnings because of the movies and television. So they decide it really isn’t necessary. People already know they have the right to attorney, etc.
So no need for Miranda.
Bahahahahahahahahahaha if you think Congress wins on that one.
This national rule prevents us from interpreting natural-born citizen under common law rules because it eliminates the possibility of a child being born with more than one claim of allegiance.
To me this is the crux of the NBC clause.
I think the intent of the founders was to avoid any potential conflict with allegiance to any country except the US by a potential or real potus.THe idea was to avoid dual allegiance by a president.
It actually happened with zero as well.
When he was born at the time of his birth he was a British citizen since his father was born in Africa not yet Kenya which was a British possession at the time.
You can't have someone who has dual allegiance or is a dual citizen as potus and the founder realized that,IMHO .
This is the problem with most people here who post on this subject.
They say what the framers of the Constitution intended.
They say what the framers of the 14th Amendment intended.
They base their arguments on what THEY THINK such and such intended.
Maybe these posters are right about INTENT.
But it does NOT matter.
They go around claiming Vattel was right and so therefore the court would follow Vattel.
Vattel was REJECTED by the SCOTUS decision.
The intent of the framers of the 14th Amendment does not matter because SCOTUS made them not matter.
If you read the brief for THE UNITED STATES in Wong Kim Ark you will see many of the same arguments that you see on this site. You will see them argue against the holding that Ark is a natural born citizen. You see them argue that he shouldn’t be able to run for President. You see them argue about double allegiance.
I haven’t read the brief by Wong Kim Ark
The bottom line is that SCOTUS in Wong Kim Ark made intent not matter.
Believe it or not, it was Justice Stevens who once said
“A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge’s refusal to consider legislative intent.”
There was a case concerning Justice Gray’s relative. He recused himself. The court ignored the law and that Same Court made a mess of another case.
Wong Kim Ark is a mess. It should be overturned. Who knows if that will happen. As it stands now one Court of Appeals case has used it to rule that all you need to do is be born in the US to run for President.
Perhaps the Kenyan doesn’t even know where he really was born, or to whom.
btw, if anyone wants to really see how this Court operated that should look into the case concerning Justice Gray’s grandfather. He was a large shipowner in New England. He, along with others, wanted indemnification for the losses they sustained because of the French Revolution.
Congress refused for decades because they considered it a raid on the Treasury.
They finally relented and passed a law which brought about the Gray claim. Under a current law Horace Gray would have not gotten the money. SCOTUS said forget the law. It should go to next of kin.
That wasn’t then end of the story.
But it just shows that this court went rogue on at least two decisions.
He should have been vetted when he signed up for primaries.
Rehnquist’s statement is circuitous with your conclusion the final link.
If Miranda is “unnecessary” because of media exposure. Doing away with it would lesson the common knowledge and thus negate your statement that it is unnecessary.
Notwithstanding whether or not we agree with Miranda in the first place.
Thanks for the interesting (very) and encouraging (even more so) read. It’s a great antidote to the subterfuge taking place ‘around these parts.’
The last paragraph is quite an eye opener.
Thanks for the ping!
Well that's just another one of these Alice in Wonderland propositions we see here regularly--the words mean what I say they mean.
We have citizenship statutes which tell us that some person's born outside the United States become citizens at birth as a consequence of the conditions or circumstances of their birth.
Whatever the military children who post here want to believe, those person's are not Natural Born Citizens.
And the argument that there is no third class of citizenship to which persons born outside the United States might belong is thus without merit because there is such a class.
Oh, I don’t think the Miranda warnings are unnecessary nor do I think Rehnquist was saying they are unnecessary.
I am just saying that if Congress made a law that said Miranda warnings were not necessary (which I dont even think is realistic) who would win:
Congress passing the law or SCOTUS saying that the Constitution requires Miranda warnings even though no such warning is in the Constitution.
SCOTUS would win that one.
They can overturn their decisions. Congress can’t without an Amendment.
There is no ruling that I know of where SCOTUS says that lower courts can ignore their binding precedent. Some courts do thumb their nose at SCOTUS. Doesn’t change the fact that their rulings are binding precedent.
Maybe there is such a case. But that poster won’t post it. All he is giving me is interviews on television.
Actually, they spend very little time talking about natural-born citizenship. It's mentioned as it appears in the Constitution and then as Minor defined it. After that, there are about 25 pages where it's not discussed anymore. The common law is discussed, but the court is trying to rationalize how to use it to give teeth to the 14th amendment.
Both courts Rejected VATTEL.
Not at all. Minor's definition matches Vattel, and Wong Kim Ark cites and affirms that same definition.
The ONLY reason they brought up Minor is to show that
- - -
Resort must be made elsewhere.
You need to read that passage very closely. It destroys your belief. First, it says that when construing the 14th amendment that "the Constitution does NOT say who shall be natural-born citizens." The 14th amendment IS the Constitution. The 14th amendment is NOT separate from the Constitution, so when they say the Constitution does NOT say who shall be natural-born citizens, it means the 14th amendment does NOT define natural-born citizenship. Later in the decision it gives the passage from Minor that DOES define natural-born citizenship, it's not from English common law.
Re-read this phrase:
And he proceeded to resort to the common law as an aid in the construction of this provision.
The first sentence in the passage is about "the very provision of the Fourteenth Amendment now in question" ... The "provision in question" in Wong Kim Ark is the birth clause. So, when Justice Waite construed the birth clause of the 14th amendment, it does NOT say who shall be natural-born citizens ... BUT, it doesn't say Waite resorted to the common law to define natural-born citizenship, he used it to define the BIRTH CLAUSE in the 14th amendment. The problem is, of course, that Waite never cited any common law to define the birth clause in the 14th amendment. Gray, however, uses that as his own cue on how to define the birth clause and how to apply it to Wong Kim Ark. The NBC definition is from the law of nations. It isn't formally cited, but it's such a close match, it would qualify as plagiarism.
And I would say Justice Fuller is more learned than you. He heard the oral arguments. he read the brief. He used language that was in use at the time. He was there. You weren’t.
This is an incredibly stupid argument, chick. Fuller cites Vattel for the definition of natural-born citizen.
Before the Revolution, the view of the publicists had been thus put by Vattel:He knew exactly what was happening in that majority opinion and dissented.
The natives, or natural-born citizens, are those born in the country of parents who are citizens.
His dissent was based on the fact that a treaty with China prevented Wong Kim Ark from being covered under the subject clause of the 14th amendment. You're misconstruing the dicta to mean something that was never argued.
I think it follows that the children of Chinese born in this country do not, ipso facto, become citizens of the United States unless the Fourteenth Amendment overrides both treaty and statute.
- - -
In other words, the Fourteenth Amendment does not exclude from citizenship by birth children born in the United States of parents permanently located therein, and who might themselves become citizens; nor, on the other hand, does it arbitrarily make citizens of children born in the United States of parents who, according to the will of their native government and of this Government, are and must remain aliens.
Tested by this rule, Wong in Ark never became and is not a citizen of the United States, and the order of the District Court should be reversed.
Read this last section very carefully. Fuller agrees with how Gray defines 14th amendment citizenship by birth (by the parents being permanently located in the United States - Obama's folks were NOT), but he dissents on whether it applies to persons whose citizenship is otherwise dictated by treaty. Gray said our Constitution overrides treaties, but technically, the Constitution puts itself on the same level. Fuller does NOTHING to dispute the Vattel definition of NBC nor does he say that it was redefined by the 14th amendment or by the majority opinion ... NOR does he say the majority opinion will allow it to happen. His concern is that children born abroad of citizens are NOT considered natural-born citizens because of naturalization clause in the 14th amendment. And face it, you've got a big problem when your best argument is based on dicta from the dissent. /P
It's ironic ... the people who argue there is no third class of citizenship by birth are generally the ones who argue that NBC follows common law ... however, the Common Law had a "third class" of citizenship called denizenship. It's defined as being between naturalized and natural-born ... and the children of denizens were themselves considered denizens. The ultimate irony is that this principle was delineated in the state of Georgia's original colonial charter.
Also we do, for ourselves and successors, declare, by these presents, that all and every the persons which shall happen to be born within the said province, and every of their children and posterity, shall have and enjoy all liberties, franchises and immunities of free denizens and natural born subjects, within any of our dominions, to all intents and purposes, as if abiding and born within this our kingdom of Great-Britain, or any other of our dominions.
Now in case anyone doesn't think this distinguishes denizens as a third class, it is made clear here:
... by these presents granted to the said corporation, unto such our Loving subjects, natural born, denizens or others that shall be willing to become our subjects, and live under our allegiance in the said colony...
Georgia's "Loving subjects" are either natural-born or denizens or others willing to become subjects. So back to the previous paragraph, every of "their children and posterity" are free denizens or natural-born subjects. The idea is that if you're born to a subject, you are natural-born subject and if you're born to a denizen, you are born a free denizen. If the U.S. followed the common law, then only those born to citizens are natural-born citizens, and those born to legal immigrants are born as a second-class of citizens who are NOT natural-born. The 14th amendment extended this principle to the children of slaves, but it did not define nor redefine natural-born citizenship. And it explains the two classes of citizens by birth that is referenced by Justice Waite in the unanimous Minor decision.
Both courts Rejected VATTEL.
“Not at all. Minor’s definition matches Vattel, and Wong Kim Ark cites and affirms that same definition.”
I am sorry, I can’t deal with you. This sentence is beyond stupid bordering on your being intentionally disingenious or just plain stupid since you claim to have read the brief and the lower court decision in Wong Kim Ark.
The lower court said they couldn’t entertain the notion of the Law of Nations (Vattel) because of controlling authority. They left it open for SCOTUS. SCOTUS rejected it as well.
I don’t have anything else to say to someone who claims that the lower court or SCOTUS followed Vattel in Wong Kim Ark
LUDRICROUS.
“Sigh, AGAIN you do not know what you are talking about.”
Are you a lawyer?
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