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.]
The law is whatever the court says it is, on that day. How many courts refused to hear this case with the simple declaration that the complainant had no standing.
I hold out little hope that the courts will begin to look at the destruction of the Constitution as a bad thing, rather than participating in its destruction.
That's precisely what a 14th Amendment citizen is.
A "citizen" because they are born here...but not necessarily a "natural born Citizen" because they might also have allegience owed to another country by way of inheriting their parent(s) foreign citizenship.
Mitt Romney stated in front of a live audience in last nights debate that he was pro immigration because of the fact that his father George Romney was born In MEXICO! So why the world was his Dad running for President against Richard Nixon?
Where oh where will you find one. This thread will soon be invaded by lawyer types to tell you how stupid every one is, that thinks this means anything. They will cite myriads of precedent setting cases just to prove that common sense is really dead after all.
You're an idiot. This article is arguing for no such thing, NOR are those two "classes" of citizenship."
The article is brilliantly clear. You are trying to fog it up with stupid lies.
Go away, shill.
While Romney was born in Mexico, he was still considered a viable and legal candidate for United States president. His Mormon grandfather and his three wives had fled to Mexico in 1886, but none of them ever relinquished U.S. citizenship. While the Constitution requires that a president must be a natural-born citizen, the first Congress of the United States in 1790 passed legislation stating: “The children of citizens of the United States that may be born beyond the sea, or outside the limits of the United States, shall be considered as natural-born citizens of the United States.” Romney and his family fled Mexico in 1912 prior to the Mexican Revolution. However, the Naturalization Act of 1795 repealed the Act of 1790[citation needed] and removed the language explicitly stating that the children of U.S. citizens are natural-born citizens. As such, it is not clear that Romney was actually eligible for the office of president.
Unfortunately, his plight was never ruled on since he never made it that far.
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.
Leo's a nice guy and I think I mostly agree that Framers intended NBC to mean a citizen child of citizen parents though I am less sure that whatever court has the final say on this has to rule that way.
But his logic here about "statutory construction" is flawed. It is flawed because these two clauses are not part of the same statute. Clause B came after Clause A and most likely was adopted without much thought given to clause A. Prior to the adoption of B, there were people born in the United States who were not granted citizenship (Dred Scott was one.) and the purpose of B was to change that.
ML/NJ
The logic doesn’t follow through my friend. Read this again.
Wow, you really are an attorney.
All that obfuscation and hair-splitting under the claim of clarification, and then the final build up to two undefined positions with no specific contrast of substantive points.
Yep, you're not only an attorney, you're a well paid one.
constitutionallyspeaking Says:Your comment is awaiting moderation.
January 27, 2012 at 3:13 PM
Hi Leo,
It continues to frustrate me the misuse/misinterpretation of the 14th Amendment. If one applies the same rule you discussed, then the 14th didn’t need to state “natural” born as “subject to the jurisdiction” was to guarantee that none born owing allegiance to a foreign nation was automatically granted citizenship as defined by feudal common law of kings. (jus corona) This is why the 1868 Expatriation Act was passed the SAME week as the 14th was ratified. It is why it was always cited along with the 14th as the US never adopted any form of dual allegiance. As both Waite & Gray stated, “subject to the jurisdiction” means the same at birth as it does for naturalization and an infant at birth has not the capacity to throw off that which is naturally acquired through the parent. Thus putting the word “natural” in front of “born” in the 14th would have been redundant which goes against every rule of law writing on the subject. The core of the 1868 Expatriation Act that deals with dual citizenship is still valid law, it has never been repealed or overturned in a court of law.
I GUARANTEE that until the 14th is put back on it’s foundation of “one citizenship” either at birth or naturalization, this effort to restore A2S1C5 is hopeless.
Every govt cite on citizenship I have researched states that dual citizenship is a “concept”. Well, a concept is not law thus since WKA, we have lived in a nation where citizenship is merely a “concept”. Get rid of the notorious unlawful concept, and then the path to restore A2S1C5 is made straight.
Respectfully, Linda
constitutionallyspeaking Says:Your comment is awaiting moderation.
January 27, 2012 at 3:35 PM
Leo,
Permit me to add a bit. I know it won’t be posted as I am not a lawyer, but one doesn’t need a law degree in order to understand the law if one uses their God given brain and common sense.
The 14th Amendment was ratified for one reason and “ONE” reason only. To formally declare that the freed slaves are in fact US citizens.
When someone is sold as a slave, the only allegiance they have is to their master. They have no political rights nor are they considered as persons, they are considered as property. Thus before they were freed, these persons owed political allegiance to no nation and therefore, upon freedom/transformation from property to person, they acquired but one allegiance and that was to the nation they resided in that freed them, the United States.
There was not act of naturalization at that point as they never owed allegiance to any other nation. IOW, no renunciation was required of them. This art of law can be found in the book of Exodus when Israel came out of Egypt. There was a mixed multitude that came out with them, some free person who were naturalized through circumcision, but there was also another group, the slaves of the Israelites. Prior to leaving, YHVH commanded His people to circumcise all the males of the household, both free & slave, thus when they left, the slave was made equal to the master in that at that point he became a bond servant/hired hand, equal to the master under the eyes of the laws of YHVH. He went from slave/property to free man with the freedom to choose the employer he wished to work for.
WKA needs to be thrown out, not reinterpreted.
“I wonder how any honest lawyer could argue against it.”
What’s an honest lawyer?
There are three classes of citizenship.
There are three classes of citizenship. Natural Born Citizen, Citizen (either through Naturalization, or by statute such as the 14th Amendment (Born here, or one citizen parent), and Alien.
The first can run for POTUS, the second and third cannot. The third has no right to any of the benefits of American citizenship including our system of justice, welfare, etc.
“But, but.. What about the Commerce Clause, where the very general is held to require all kinds of specifics?”
That’s because the specifics belong to the general, they do not attempt to override it.
Some things are really so simple they are overlooked because they are so taken for granted. We cannot afford to take ANYTHING for granted these days.
:)
Can you explain to me why my daughter cannot be President?
She was born in Canada, right across the border from our home. She was a “resident” of Canada fore the first 48 hours of her life. She has lived with us, who are both natural born USA citizens, for the rest of her childhood, and is now 39 years old.
But, she cannot be President, because she was born in Canada. Why does the law prevent her, but not Barry O, who doesn’t have two natural born USA citizens, and has not produced an undoctored birth certificate showing the place of his birth. (Which I suspect was right across the border, in Canada)
Inquiring minds want to know why the difference?
Well, I’m not an attorney and I saw the fault in his argument right away
http://www.freerepublic.com/focus/bloggers/2838849/posts?page=30#30
"Without much thought"? LOL, go for the brass ring, eh? I'm afraid its your logic that is flawed. It is irrational and specious to argue that the creation of a Constitutional Amendment was done without regard to the sole alternative to the definition of citizenship it would create. In fact, even a little research would show that the entire purpose of the 14th Amendment was to create an alternate definition of citizenship in order to restrict rights into privileges - and in doing so, enable the federal takeover of the country we see today. And as for differing statutes, that is irrelevent - what matters is the common subject matter.
There is not law that upholds that statement. A concept, yes,m but not a law.
http://www.freerepublic.com/focus/bloggers/2838849/posts?page=30#30
There is no law that upholds that statement. A concept, yes,m but not a law.
http://www.freerepublic.com/focus/bloggers/2838849/posts?page=30#30
His Honor Malihi has already quoted the rules which Leo explains. As for Obama’s pappy, we can only go by what Obama has PUBLISHED. Until such time as the cretin can be forced to come clean. Of course he will not do that. So, we are back to square one. What ever else may be it is OBAMA’s OBLIGATION to prove his eligibility. It isn’t OUR responsibility, it is HIS.
So we will continue to DEMAND he OBEY us, his boss.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.