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To: Beckwith; Drew68
"From Kim Wong Ark:"

This is why amateurs shouldn't cite case law, they invariably get it wrong.

You clipped but a sentence from Ark that is taken from a citation of Minor v. Happersett used by the opinion's author to address an earlier opinion by Justice Miller surrounding the Slautherhouse cases as they relate to the 14th, and is not part of the legal holding. Moreover, earlier in that same majority opinion, the author writes this when tackling the origin of the definition of "natural-born"...

"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born."

and more later in the opinion...

"The later modifications of the rule in Europe rest upon the constitutions, laws or ordinances of the various countries, and have no important bearing upon the interpretation and effect o the Constitution of the United States. The English Naturalization Act of 33 Vict. (1870) c. 14, and the Commissioners' Report of 1869, out of which it grew, both bear date since the adoption of the Fourteenth Amendment of the Constitution; and, as observed by Mr. Dicey, that act has not affected the principle by which any person who, whatever the nationality of his parents, is born within the British dominions, acquires British nationality at birth and is a natural-born British subject"

and finally, the holding found in the last paragraph...

"The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative."

Now, what does that all mean with respect to young Mr. Ark's ability to become the President of the United States. Well, if you want to know what the dissenters believed to be the practical consequence of the majority's opinion with respect to Presidential eligibility, one only needs to read this paragraph from Justice Fuller lamenting the very reality created by the majority's opinion...

"Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not."

Fuller hates it and thinks its unreasonable to conclude as such, but he recognizes this is the conclusion of and the resulting legal reality created by, the majority opinion in Ark.

34 posted on 04/01/2010 11:32:12 AM PDT by OldDeckHand
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To: OldDeckHand
Very lucid. And your opening line pretty much sums up the whole birther issue: “This is why amateurs shouldn't cite case law, they invariably get it wrong.”
36 posted on 04/01/2010 11:38:41 AM PDT by tired_old_conservative
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To: OldDeckHand
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born."

If one gets a citizenship through parentage, as Barack Obama received at birth a British citizenship, it would bring into question for him being a natural born citizen. His allegiance would be partly to the United States, if was born in Hawaii, but Obama would also have an allegiance to England. His allegiances would be split that the founders wanted to avoid for the president of the United States.

The United States fought two war with the English empire to break away from them and their laws. The War of 1812 was partially fought over the British Empire because the British were taking US citizens and forcing them to serve in the English navy because they believed "once a British subject always a British subject." You don't fight a war or two over citizenship and then turn around and leave the question open to having a president of the United States under the allegiance and jurisdiction of another country. The US Constitutional is not the Blackstone Commentaries or common English law. On the contrary, the US Constitution became US common law and not English law.

66 posted on 04/01/2010 1:36:21 PM PDT by Red Steel
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To: OldDeckHand; Beckwith; Drew68

“This is why amateurs shouldn’t cite case law, they invariably get it wrong.”


So your credentials trumps Mr. Apuzzo, Esq.’s right???

http://puzo1.blogspot.com/


131 posted on 04/01/2010 8:56:22 PM PDT by danamco
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To: OldDeckHand; Fred Nerks; null and void; stockpirate; george76; PhilDragoo; Candor7; rxsid; ...

< Note: this is a long post, but please stick with it ... there's important NEW info & citations within >


This is why amateurs shouldn't cite case law, they invariably get it wrong.

Indeed. You just described the average Obama-supporting After-Birther who wanders through here, quoting from bulletpoint "fact" sheets created by some half-ass Progressive legal assistant ... LOL

one only needs to read this paragraph from Justice Fuller lamenting the very reality created by the majority's opinion...

ROTFLMAO ... so instead of citing CASE law, you're now quoting Dissenting Opinions to attempt to make your point? Now that's funny.

Well if you're playing that game ... Justice Gray laments the very reality created by the Minority opinion (Justice Fuller) ... about 11 paragraphs down in Gray's Majority opinion:

The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. [p655]

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.”
So ... FROM WHERE would "Resort must be had elsewhere to ascertain that" come? Obviously Common Law, although Natural Law (Vattel, Locke, etc) had a very strong influence as well (seeing how France financed a lot of the Revolutionary War and the Colonists had a general disdain for British law).

However, let's delve deeper on the subject of citations used by Justice Gray in US vs. Kim Wong Ark. HINT: Don't hang your hat on A.W. Dicey's "Conflict of Law" (1896 edition) as used in Justice Gray's US v. Kim Wong Ark Opinion (1898).


Obviously you're aware that BAD Supreme Court opinions exist, as you've referenced the Slaughter-House Cases (1873) that "overturned" Dred Scott v. Sandford (1857). Obviously there are many other landmark decisions in the history of the SCOTUS.

The first modern case that pops into my head is the 2008 DC v. Heller SCOTUS Opinion on “to keep and bear arms”, which overturned nearly 70 years of BAD Lower Court Opinions and Local/State laws stemming from the badly-written and incomplete 1939 US v Miller SCOTUS Opinion.

It's a VERY good bet that today's Chief Justice Roberts' SCOTUS Court will eventually "clarify" historically-incorrect sections of Justice Gray's 1898 US v. Kim Wong Ark Opinion and his historical analysis therein.

Here's why:

See, the quote you offered, "It thus clearly appears that by the law of England ... whatever the nationality of his parents, is born within the British dominions, acquires British nationality at birth and is a natural-born British subject." was first published in the unrefined 1896 First Edition of A.W. Dicey's "Conflict of Law."

Justice Gray used the two-year-old First Edition version of Dicey's book in his 1898 US v. Kim Wong Ark analysis. (Gray used other weak references to make his point in his 1898 US v. Ark Opinion, too, like Binney's 1853 "Alienigenae of the United States" ... a pamphlet rejected by Congress, where Binney contradicts himself in 1854, LOL).

However, in Dicey's SECOND Edition of "Conflict of Law" published in 1908 and subsequent editions, you will NOT find that quote from Dicey.

Dicey "corrected" himself later ... perhaps why Dicey’s “Conflict of Laws” has been cited only EIGHT times in ALL of the searchable US Supreme Court Opinions on record.

You'll find that Dicey — after further analysis of Common Law of the latter-18th century — revealed THIS in his 1908 Second Edition of “Conflict of Laws”:

"A child whose father's father (paternal grandfather) was born within the British dominions is a natural-born British subject, even though the child's father and the child himself were not born within the British dominions." (Hint: This would DIRECTLY IMPACT Barack Hussein Obama and his lineage to his British father and British subject, regardless of Obama Jr's birthplace).

By 1932, an older and wiser A. W. Dicey wrote:

“To any critic of Blackstone, as to any student of English law, I unhesitatingly give this advice: Begin your study by reading Blackstone's Commentaries. Keep in mind that the book describes English law as it stood towards the end of the eighteenth century.”



Dicey finds the proverbial acorn with his 1932 observation, as the SCOTUS of yesteryear and today references Blackstone's Commentaries on a very regular basis! This methodology to determine the Framer's Original Intent — by referencing Common Law as it existed at the time of the Framing "towards the end of the eighteenth century" — has been re-affirmed by the SCOTUS and Constitutional experts time and time again.

Again, citing DC v Heller (2008), the SCOTUS must make Opinions as "interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution."


As attorney and Constitutional expert John W. Guendelsberger — who Barack Obama appointed to the Board of Immigration Appeals (BIA) in August — pointed out in 1992 regarding US v. Wong Kim Ark (169 U.S. at 653):

“In particular, the Court noted the Constitution's requirement that the President be a “natural-born citizen,” a condition whose meaning could be derived only by reference to English common law in existence at the time – see US v. Wong Kim Ark (1898), referencing Minor v. Happersett (1874).


To reiterate: Blackstone has been referenced THOUSANDS of times by the US Supreme Court to define the Framer's Original Intent ... nearly 20 times in DC v Heller alone! Blackstone's Commentaries has stood the test of time; A.W. Dicey's "Conflict of Law" — used by Justice Gray in US v. Ark (1898) — HAS NOT.


So ... what does Blackstone say about British subjects, Allegiance and "service to two masters" (i.e., Dual Citizenship)?

“When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children.



183 posted on 04/01/2010 11:28:15 PM PDT by BP2 (I think, therefore I'm a conservative)
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