Posted on 07/01/2008 1:03:52 PM PDT by Red Steel
Suits have been started in every state where McCain won the primary seeking to decertify his delegation on the theory that McCain is not eligible to election as President. Anyone who doesn’t immediately grasp why that has been done and by whom has never been on the credentials committee of a national convention.
Curiouser and curiouser...
“Thank you for your expert opinion, you are dead wrong however. The mother did not meet the requirements, because Hawaii was a territory, not a state. Read the Law, wise up.”
Here’s the law:
http://www.theodora.com/ina_96_title_3.html
“(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years:”
What’s the first sentence say, genius? He was born in Hawaii, a US possession, so he’s eligible.
The seal is embossed, not ink, IIRC.
If the impression is deep enough and the scanner is good, it will show up on the scan. Also, if the embossing is old, it will be a little dirty and this will help it show up as dark.
On a fairly newly requested certificate, the seal will be clean and the same color as the background. If the embosser didn’t make as deep an impression, or the scanner wasn’t that good, it will not show up.
I really don’t see any mystery in the difficulty detecting the seal on the newer certificate vs the older ones.
Good. Assumptions are bad things. The tone of much of the campaign is that she was dead--obviously he is running away from her to the extent practical.
85 now; Obama born 47 years ago when she was 38; her daughter was 18 and thus born when she was 20. All fits. 85 is not too old. And she might know something you could get out of her in a deposition if necessary.
You said: “ Further, even if he had been born on the base, in my opinion, the Supreme Court would still hold he was not eligible to hold the office of President because the Constitutional test cannot be resolved by Congressional citizenship legislation.
McCain is clearly a citizen. But I think he flunks the Constitutional eligibility test to be president.”
FWIW, the State Department has stated: “Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth.”
http://www.state.gov/documents/organization/86755.pdf
McCain’s citizenship claim rests on a statute:
“Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.”
But this provision is part of a section titled “Part I—Nationality at Birth and Collective Naturalization”
Thus, McCain’s claim to citizenship based on WHERE he was born pretty clearly makes him a natural-born citizen.
http://law.justia.com/us/codes/title8/8usc1403.html
So the only question in my mind relates to the fact that he was born of American parents. The State Department further concedes:
7 FAM 1131.6-2 Eligibility for Presidency
“The Constitution does not define “natural born”. The “Act to establish an Uniform Rule of Naturalization”, enacted March 26, 1790, (1 Stat. 103,104) provided that, “...the children of citizens of the United States, that may be born ... out of the limits of the United States, shall be
considered as natural born citizens: Provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”
“This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.”
http://www.state.gov/documents/organization/86757.pdf
The foregoing simply restates the claim you have been making, but what interested me was some language I found from an existing Supreme Court opinion:
In United States v. Wong Kim Ark, 169 U. S. 649 (1898) the Supreme Court has already ruled:
“The Fourteenth Amendment of the Constitution . . . contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.”
My hat’s off to you. I started this as a rebuttal to your position, but now see after some investigation why you are making this claim. Heretofore, I thought McCain’s case was bulletproof by virtue of being born of 2 U.S. citizens: hence the exact location in Panama didn’t matter. Now I see that unless someone can prove Obama was born outside of Hawaii, he actually has has the far strongly legal claim to meeting the qualifications for presidency. What a mess.
You said: “This is the law...read it.
http://www.theodora.com/ina_96_title_3.html";
Actually, it appears to be the old law. Links to the new law are contained in my post to David. Hawaii was not a territory in 1961 when Obama was born and I haven’t seen any good evidence he was born in 1959, when it still was a territory. But IF it was a territory, then Obama’s claim to being a natural-born citizen is subject to the identical challenge that McCain’s is, for reasons explained in my reply to David.
For the usual quick answer layman's questions, probably. But the lawyer would always prefer to look at the statute and in the modern world that is usually not difficult.
Note that you say, In 1986 this was changed to 5 years before the age of 14 and 2 years after the age of 14. (So some may say he fits in this, but I don't see anywhere where it says it was retroactive . . . .)
The statute is quoted above in #148. The people that want to give the 1986 amendment retroactive application are incorrect.
The statute in its current codification is 8 USCA Sec. 1401(g). The amendments, referenced to the public law in which they were enacted are cited below the statute. The effective dates of the amendments are then cited in the afternotes below the public law references.
The current version of (g) was adopted by Public Law 99-653 which was effective with respect "to persons born on or after November 14, 1986." So the amendment, by its terms, is clearly not retroactive.
Some are confused by the flush language at the end of (g) which give retroactive effect to "this proviso" however the "proviso" reference is to the language beginning ""Provided, That any periods of honorable service in the Armed Forces of the United States. . . . " which has no application to the present situation.
To find the earlier version of (g), you need to see in the amendment descriptions that the subsections of 1401 were renumbered by the amendment--so Sec. 1401(7) became 1401(g).
In addition, my memory is that there was another version of (7) before it was modified to the 1986 version which had the 10 and 5 year residence rules keyed to age 21, not age 14. My memory may be incorrect however even if so, the rule in 61 when Obama claims to have been born would have been five years after age 14 and since his mother was only 18 when he was born, she still flunks the test.
Bottom line is that absent a naturalization proceeding, if Obama was born in Kenya as appears from the record, he is not even a US Citizen.
Bottom line is that absent a naturalization proceeding, if Obama was born in Kenya as appears from the record, he is not even a US Citizen.
IF- it is true- the ramifications for the country are alarming. When is this going to be disclosed- or if not ture- otherwise put to rest...
Well no.
First place, Hawaii was a state in 1961 when he claims to have been born.
More important to your conclusion is that the statute you quote is not applicable to individuals born before November 14, 1986. The statute was changed to the version you quote by Public Law 99-653--the effective dates are set out in the afternotes to the Codified version of the statute.
The version that was effective required that the US Citizen parent reside in the US for at least five years after age 14. Since the mother was only 18 when he was born, she flunks that test by definition.
Note further, as we pointed out to you earlier, that the statutory citizenship test does not control the Constitutional test of eligibility to serve as President--even if he had been a citizen, which it appears clear from the statute he is not, he still flunks the test of Article II, Sec. 1, Par. 4 of the Constitution for eligibility to serve as President.
“So if he can’t produce his birth certificate, then he should be able to produce his naturalization records since he’d need those to run for the Senate, correct?”
Honestly, I’ll bet nobody ever even bothered to check.
Although, if I’m not mistaken, one _does_ need some kind of security clearance in order to be a Senator. So the questions could be asked:
- Which government agency undertakes the investigation to certify the clearance?
- If one was undertaken in Obama’s case, what did they discover?
- John
Wrong.
This is the current statute which does not apply to persons born before November 1986 as set out in post #211.
Ok what part of Sec. 1401(g) was in place when Obama was born?
http://law.onecle.com/uscode/8/1401.html
“(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years:”
When I first read this part that I have put in bold is what I thought also at the time I first came across it, but I am no lawyer and it does get confusing. So when I read your post and you said that was the correct interpretation I was glad to see my first impression was correct.
You said if your memory was correct, the ruling in 61 when he was born was 5 years after 14 so she would have to have been 19 and she was 18. What I remember the rule in 61 was 5 years after the age of 16.
Thanks for your information.
McCain is clearly a citizen. But I think he flunks the Constitutional eligibility test to be president.”
FWIW, the State Department has stated: “Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth.” http://www.state.gov/documents/organization/86755.pdf
McCain’s citizenship claim rests on a statute: “Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.”
So the only question in my mind relates to the fact that he was born of American parents. The State Department further concedes:
7 FAM 1131.6-2 Eligibility for Presidency “The Constitution does not define “natural born”. The “Act to establish an Uniform Rule of Naturalization”, enacted March 26, 1790, (1 Stat. 103,104) provided . . . Provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”
“This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.” http://www.state.gov/documents/organization/86757.pdf
The foregoing simply restates the claim you have been making, but what interested me was some language I found from an existing Supreme Court opinion:
In United States v. Wong Kim Ark, 169 U. S. 649 (1898) the Supreme Court has already ruled:
“The Fourteenth Amendment of the Constitution . . . contemplates two sources of citizenship, and two only: birth and naturalization.
My hat’s off to you. I started this as a rebuttal to your position, but now see after some investigation why you are making this claim. Heretofore, I thought McCain’s case was bulletproof by virtue of being born of 2 U.S. citizens: hence the exact location in Panama didn’t matter. Now I see that unless someone can prove Obama was born outside of Hawaii, he actually has has the far strongly legal claim to meeting the qualifications for presidency. What a mess.
Well that's pretty good legal work. And there is some new material here I have never seen and wonder where you found 7 FAM 1131.6-2 Eligibility for Presidency.
McCain's citizenship does rely on the statute but I don't think he is stuck with the Canal Zone statute or he would have a problem. The citizenship statute makes a person born to two U S citizen parents outside the US a citizen--so based on the published information which I have not confirmed that says both his parents were citizens, it is my opinion that McCain does not have a citizenship problem.
Wong Kim Ark accurately states the citizenship law. But one of the essential points is that the Congressional definition of citizenship does not operate as an amendment of the Constitutional provision regarding eligibility to serve as President provided in Article II, Sec. 1, Par. 4 of the Constitution. The fact that a person is a citizen under the statutes does not make him or her "natural born" for purposes of the Constitutional test and I think the Supreme Court is likely to hold if asked that to be "natural born" for purposes of the Constitutional test, an individual needs to be born in the geographical area of the states.
And the point to McCain is that an earlier Congressional fiction about the Canal Zone doesn't make it part of the United States; and, further, that even if it did, McCain wasn't born there anyway--he was born in an offbase hospital in Panama.
So I might differ a little with the tone of your bottom line--McCain is a citizen; but is probably not eligible to serve as President. Obama's claim to both citizenship and eligibility rests on his position that he was born in Hawaii. As of this date that claim is supported only by a fraudulent Birth Certificate. His birth doesn't appear in Vital Statistics; some of his Kenya relatives claim they were present at his birth in Kenya; the Wayne Madsen update claims that official birth records of his birth in Kenya have been located there and are now in DC. I think it is a reasonable inference that Obama was born in Kenya and under the circumstances it does not appear that he is either a citizen or eligible to act as President of the United States.
It doesn’t matter...he was supposedly born in Hawaii, which has been a U.S. territory since 1898. That fact alone makes him a natural born citizen. No subsequent amendments has altered that condition.
The section we were previously discussing referred to “a person born outside the geographical limits of the United States and its outlying possessions.” Any amendments to this section are irrelevant to the discussion.
Now if turns out that he really WASNT born in Hawaii, then he’s got a problem.
Heads up. Chat with Lynn Sweet of the Sun Times today at noon, join Ustream to submit questions, chat will be over at 1. This is very important and may be the only way we can get some answers or more of an insight.
http://blogs.suntimes.com/sweet/2008/06/chat_with_lynn_sweet_on_wednes.html
Here’s the chat page to bookmark:
http://www.suntimes.com/chat/1032344,sweetchat063008.stng
http://law.onecle.com/uscode/8/1401.html
“(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years:”
You can confirm my recollection by looking at the United States Code Annotated--the detailed description of the amendments referenced to the Public Law by which they were made follows the current text of the statute. The effective dates for each of the amendments then follows the descriptions.
The 1986 Amendments substituted the five and two year rules for ten and five years respectively effective for births after November, 1986 and thus have no application to Obama. Prior to the 1986 Amendments, the statute provided that in the case of a child born to one US Citizen and one alien, the child got citizenship but only if the US Citizen had resided in the US for ten years, five of which years were after the age of 14. Since Ms. Dunham (Obama's mother) was only 18 when he was born, he flunks under that test.
My additional recollection, supported by post #215 is that the rule in 1961 was age 21 or age 16. Since it doesn't make any difference, I haven't attempted to confirm that is correct. Either way, Obama is not a US citizen absent a naturalization proceeding, if, as it presently appears, he was born in Kenya.
Read the top of page 2 were it says the below laws applied to out of the United States births.
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