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.]
Rubio is a “citizen” rather than a “natural born citizen”, because his parents were not citizens at his birth. This is probably true of Jindal also. There is also the question of whether Romney's parents were citizens of Mexico at his birth, or US citizens.
Obama is not a natural born citizen, since his father was not a citizen at the time of his birth.
Under the law at the time his mother could not impart citizenship on him, because she was a minor. Remember the age of majority in 1961 was 21 years of age (she had not lived the require number of years to impart citizenship). It's been a while since anyone brought that fact up on a thread. Only his father, a British citizen could impart citizenship.
If proved that Obama was in fact born in Hawaii, he then is a “citizen”, but not a “natural born citizen”. Especially since the marriage of his parents was in fact not legal, since his father already had a wife in Kenya.
I agree, the constitution is NOT written on Lycra, it is written on Parchment, and Amended through a great deal of blood, sweat and tears.
If your daughter is of color maybe she can be President, then again being female maybe she can scream sexist and that will work. That seems to be the dividing line not the rule of law. Its what the media wants. We now are a lawless corrupt third world country.
You mean a citizen when the parents are “...subject to the jurisdiction thereof...”
Most need an English lesson before dissecting the minutia of lawyer speak.
I believe that Donofrio is defining and explaining the concept for lay people. There is a great deal of disinformation out in the bloggosphere by Obots who deliberately attempt to confuse lay persons. Because we do not have the education in the law, this is relatively easy to do. Donofrio has given the layperson greater understanding of a concept important to understand in the debate as a whole.
Thanks for the cogent post! :)
The 14th Amendment to the U.S. Constitution reads in part:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
In 1866, Senator Jacob Howard clearly spelled out the intent of the 14th Amendment by stating:
“Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”
This understanding was reaffirmed by Senator Edward Cowan, who stated:
“[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word...”
The phrase “subject to the jurisdiction thereof” was intended to exclude American-born persons from automatic citizenship whose allegiance to the United States was not complete. With illegal aliens who are unlawfully in the United States, their native country has a claim of allegiance on the child. Thus, the completeness of their allegiance to the United States is impaired, which therefore precludes automatic citizenship.
Again statement is still made that they are citizens of the United States. It does not add that they are in fact Natural born citizens as required for the President and Vice President.
http://www.freerepublic.com/focus/bloggers/2838849/posts?page=30#30
Not at all - birth in this country is one way of obtaining citizenship, but IT IS NOT THE ONLY WAY. Obviously, naturalization is another way, and there are still others. A more correct statement than Leo's would be "Therefore the term "natural born" must be considered as requiring something more THAN SIMPLE CITIZENSHIP." That clearly is true under the rules of construction.
It may be provable that Obama does not fall under the umbrella of natural born citizen. But THIS particular argument is not proof that "natural born citizen" means a child born to two US citizens. I have seem other arguments that give a basis for that interpretation, but this particular argument is logically flawed. IMHO
Not quite.
First of all, it was never ratified - it was adopted, but not ratified, and so, in fact, it is not law. It's just used as law. Look up the ratification history.
Secondly, you've put the cart before the horse - it MADE "U.S. citizenship." And that "citizenship" is NOT one of rights, but of administrative privilege. The reason the slaves were "made" 14A citizens is BECAUSE THEY WERE SLAVES. It didn't free ANY of them. Instead, it created a NATIONAL SLAVE CITIZENSHIP for them. It "solved" the State slavery issue by making it FEDERAL. That's how it "freed" the slaves from the States.
And since then, in the same was it was originally "presumed" into existence in the first place, it has been "presumed" to apply to EVERYONE.
That's why. for example, no one can get "standing" to examine Obama's birth certificate in court - slaves cannot demend anything from their masters, by definition. They have no standing.
My answer would be simple. I don't see anything in the constitution that would preclude someone that was ineligible from running. It's assumed if they won, they would be found ineligible and could not be sworn in.
Another answer could be that if both his grandparents were citizens then the actual location of his birth may not have been an issue. As seen in the case of John McCain.
As to the OP. You don't have to be a lawyer to figure this out. The obvious meaning of NBC is a person born to two citizen parents. How do I know this? Because the framers were OBVIOUSLY trying to ensure allegiance to the United States and what force determines this allegiance? The PARENTS of course. Think about it. As an infant you have no idea where you were born, its how you are brought up that matters.
For those arguing that Obama is an NBC then you would have to assume the framers would have been ok if the Queen of England happened to be visiting the US and had a child on our soil that baby could later be eligible to be the president of the United States!! If you believe that, then no amount of legal training is going to help you.
Because the entire DNC covered it up, the liberal union shills in the education system refuse to teach our real history and its meanings, and the press has singularly focused on Obama’s birth certificate AT HIS INSISTENCE. So the mockery started, and the press violently ignores the constitutional inconsistencies blatantly apparent.
I am sorry about your daughter, really she should be as much if not MORE upset at what Obama and all those who helped him have done.
It’s known as the 14th Amendment Patlin.
Completely false, a little research blows your theory right out of the water because that is all it is, a theory.
FACT ... 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. But I have done more than a little research which Mr Donofrio continues to ignore in order to keep up the charade that there is a 3rd class of citizens.
You are completely full of it Patlin.
I wash my hands of you.
Good day mam.
There is no way that this traitorous plan was carried out, without the full knowledge of at least the leadership of the Republican Party, and likely the court as well.
Biggest mystery to me is why the Mossad knows nothing about this man, or if they do, why have they not leaked it?
born or naturalized, "AND subject to the jurisdiction" puts both born and naturalized on equal footing in the eyes of the law in regards to allegiance, they both owe but one.
To make your argument and the one Leo keeps tripping himself up on, the 14th would have to read
born, "OR naturalized and subject to the jurisdiction"
In law, punctuation has “GREAT” meaning. The 2 above examples do not render the same meaning
Perhaps, but he tried to add credibility to his point by calling out lawyers specifically, and daring them to challenge his argument.
His argument does have merit to the extext he is opposing those who argue that the 14th Amendment overruled the NBC. But it doesn't help with the underlying De Vattel disagreement, which, in the interests of full disclosure, I reject. My personal legal experience and knowledge is that the default rule in American jurisprudence has always been English Common law, and under the common law, jus solis -- you are a citizen of the place in which you are born -- was the rule. Jus sanguinas -- that citizenship must be based on the citizenship of your parents, was not the common law in England. It was more common on the Continent, so it makes sense that a Swiss like De Vattel would promote that view.
But I don't really get upset about it either way. Kind of sad that it has divided people here so much, because as a matter of realism, it is a settled issue.
Well he had lots of money for one. The issue would have been debated had he actually beat Nixon, since he didn't, they let that sleeping dog go back to sleep, so we could kick him today.
Thus you are utterly wrong in your interp of the 14th.
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