Posted on 12/16/2011 5:31:52 PM PST by bushpilot1
Five Georgia men have challenged President Barack Obama’s inclusion on next year’s presidential ballot, with at least some citing an oft-discredited theory that Obama is not eligible for office because the Constitution says that a president must be a “natural born citizen.”
All the challenges have been made through the Georgia Office of the Secretary of State, which referred them to the state administrative hearings office. Hearings have not yet been set.
(Excerpt) Read more at ajc.com ...
“The Supreme Court has greater authority on the question of the Constitutional meaning of ‘natural born citizen’ than any of the authors you cite.”
The Chief Justice of the Supreme Court swore Barack Obama in as president (twice!), and the Court has welcomed into its ranks two justices Obama appointed.
The problem is your reliance on cranks and sore losers to interpret Supreme Court opinions. The sources I cited actually have the competence birthers pretend.
Kenny Bunk asked: “The question of Obama’s eligibility is just that, a question. Instead of leaving it to us cyber-brawlers to pro and con this issue, don’t you think the SCOTUS ought to get off it’s collective black-robed duff and agree to hear a case?”
The Supreme Court’s case load prevents them from taking time to debunk crank nonsense. That’s my hobby, not their job.
Here’s the deal: If you refuse to take a clue from anything less than a SCOTUS ruling specifically on Obama’s eligibility, then Obama remains president and you remain clueless. Obama seems fine with that. Does it work for you?
“The opinions of Jill Pryor, Orrin Hatch, Charles Gordon, Black’s Law, West Publishing and the hillbillies who constituted the Indiana Appeals Court are Trumped by the Nine members of the United States Supreme Court who unanimously decided in Minor v. Happersett that NBC is exclusively defined as ‘all children born in the country to parents who were its citizens.’”
I asked you before to show the “exclusively” you claim in the opinion you cite, even in dicta. You could not. Care to try again?
Is this satire?
I'm not sure he's even BLACK????
That would be a BIG REASON to NOT release his BC.
Swearing in a President is not an official act of interpretation of the Constitution by the Supreme Court. Nor is it an act of the Court at all, but merely the act of an individual Justice. Nor is there any evidence that any member of the Court has ever fully considered all the laws and the facts regarding Obama's eligibility, let alone the Court as whole.
The problem is your reliance on cranks and sore losers to interpret Supreme Court opinions. The sources I cited actually have the competence birthers pretend.
Not only is that an ad-hominem argument, an instance of the "No True Scotsman" fallacy, and intellectually dishonest, it also assumes that there are no highly-authoritative sources who strongly disagree. You cannot fail to know that that assumption is false:
In Minor vs. Happersett, the court held that the 14th Amendment granted no one at all any right to vote, regardless of sex, age or citizenship. Previous cases had already held that there was no Federal right to vote. The second principal holding in Minor, as well as the holdings in previous cases, are the reason that the 15th, 19th, 24th and 26th Amendments were later proposed and adopted, the language of which forbids the denial of the privilege of voting based on race, previous condition of servitude, sex or age (for those 18-years of age or older.) The 19th Amendment, for example, requires that if one sex is granted the privilege to vote, the other sex must be granted that same privilege equally.
But the court in Minor determined that before it could decide the issue of whether the petitioner (who was an adult White woman) had any Federal right to vote based on the 14th Amendment, it first had to decide whether or not she was a citizen, and if so on what basis? Understanding why the court approached the issue that way is crucial: Firstly, if women as a class be not US citizens, then the second sentence of the 14th Amendment that forbids States from denying citizens any privileges of US citizens would not apply to them, since it only applies to those who are US citizens. Secondly, the court was concerned with whether or not the citizenship of women as a class depended on the 14th Amendment. In other words, the question was whether or not, in the absence of the 14th Amendment, would any women at all be citizens? That second issue mattered for two reasons:
If women as a class were not citizens before the adoption of the 14th Amendment, then the Court would have to decide whether the first sentence of the 14th Amendment granted women "born in the US and subject to the jurisdiction thereof" US citizenship. But if the woman who was the petitioner in the case at hand could be held to be a US citizen even without applying the first sentence of the 14th Amendment, then the principle of judicial restraint would behoove the Court to avoid deciding whether or not the 14th Amendment grants any women US citizenship. Judicial restraint requires that courts not make precedent-setting holdings when the issues in a case do not require it.The court has always interpreted the principle of judicial restraint as sufficient reason to use the original (unamended) text of the Constitution before relying on the text of any subsequent Amendments, if such is possible. That's especially true in the absence of any prior precedents based on a particular clause of the Constitution. They seek to avoid making a "first instance" interpretation of any clause when there are other precedents that can be used instead (where it can be shown that no reasonable meaning of the unused clause could possibly change the outcome.) In this case, since the 14th Amendment definitely did not deprive anyone of citizenship, there was no reason to rely on its first sentence to determine citizenship, if it could be determined that the petitioner was a citizen based on the original text of the Constitution.
It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. But if it was not, the contrary may with propriety be assumed. [pp. 171, 172]
The Court in Minor held that the petitioner was in fact a US citizen, and had been such from birth, before the ratification of the 14th Amendment. The reasoning the Court used to reach that holding is actually central to the question of the Supreme Court's definition of "natural born citizen," and so that reasoning (and the Court's definition of "natural born citizen") needs to be examined in more detail.
But before we do, let us first consider another issue: Is what is asserted to be a holding in Minor—that the petitioner was a US citizen based on the original (unamended) text of the Constitution (and in fact had been such since birth, before the ratification of the 14th Amendment)—actually a precedent-setting holding? Or was it, as has been claimed elsewhere, merely dictum, and therefore not binding US Supreme Court precedent?
To answer that question, we first refer to the most recent Supreme Court precedent regarding the principles to be used to distinguish between dicta and holdings that establish binding precedents, which can be found in a case decided in 1996 known as Ogilvie Et Al., Minors v. United States, 519 U.S. 79 (1996). Justice Breyer's majority opinion in that case stated that when the Court discusses a certain “…reason as an ‘independent’ ground in support of our decision”, then that reasoning is not simply dictum:
“Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an ‘independent’ ground in support of our decision, id., at 334. We cannot accept petitioners’ claim that it was simply a dictum.”
The syllabus of the Minor case lists the following as one of the holdings:
2. In that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment to the Constitution as since.
The fact that that decision is listed in the syllabus of the case is evidence that the Court considered its decision on the citizenship question to be a precedent-setting holding, and not dicta.
The fact that the Minor court used the fact that the petitioner was a US citizen without recourse to the first sentence of the 14th Amendment as one of the independent grounds for their other principal holding regarding the right to vote makes that decision a precedent-setting holding, according the principles established in Ogilvie.
Therefore, the citizenship holding in Minor is binding US Supreme Court precedent. Although the second principal holding regarding the right to vote was later mooted by the 19th Amendment, the first principal holding regarding the basis for establishing US citizenship without any reliance on the 14th Amendment still stands as binding Supreme Court precedent which has never been overturned nor obviated by subsequent Amendments to the Constitution.
The reason this is so important is because in the Minor decision, the Supreme Court didn't just decide that a woman was a citizen, it made that decision by providing its official interpretation of the phrase "natural born citizen," specifically referencing the qualifications to be US President from Article II section 1, and then applying the definition of "natural born citizen" to the petitioner and coming to the conclusion that she satisfies all the conditions to be a "natural born citizen." Here's the text:
Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides [n6] that "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President," [n7] and that Congress shall have power "to establish a uniform rule of naturalization." Thus new citizens may be born or they may be created by naturalization.The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. …
The Court concluded that, since the term "natural born citizen" was used in the Constitution as one of the qualifications to be President, that anyone who qualified as a "natural born citizen" necessarily was defined by the Constitution as a citizen. So the Court proceeded to research the meaning of "natural born citizen" to see whether it could rule the petitioner to be a citizen based on the definition of that term. Pursuant to its research, it then defined "natural born citizens" as "all children born in a country of parents who were its citizens."
Note that the Court states that "natural born citizens" are distinct from "aliens or foreigners." That's actually a very important semantic distinction. To see why, it is necessary to understand the 18th-century common law meanings of the words alien and foreigner:
According to Black's Law Dictionary, the word "foreigner" can be used in a municipal context and in an international context. In a municipal context, anyone who is not a member of a community is a "foreigner" in that community. In an international context, anyone owing allegiance to a foreign state or sovereign is a "foreigner":
FOREIGNER. In old English law, this term, when used with reference to a particular city, designated any person who was not an inhabitant of that city. According to later usage, it denotes a person who is not a citizen or subject of the state or country of which mention is made, or any one owing allegiance to a foreign state or sovereign. (Henry Campbell Black, A Dictionary of Law, First Edition, 1891, p.506)
In 2009, the Berkeley Journal of International Law published a comprehensive historical analysis of the words "foreigner" and "alien", as used in English and American legal writings during the late eighteenth century. Research by Anderson Berry found that the word "foreigner", when used in an international context, has a general meaning and a specific meaning. In the general sense, anyone who was born in a foreign country or is a citizen or subject of a foreign country is a "foreigner". But in the specific sense, "foreigner" is used in contradistinction to "alien".
...the overwhelming majority of sources available to the drafters of the judicial bill [of 1789] define an "alien" as an individual who: 1) is foreign-born, and 2) resides in a sovereign's territory other than the one where he was born. A "foreigner" is defined as an individual who: 1) is foreign-born, or more specifically, is a foreign citizen or subject, or 2) is a foreign-born individual residing extraterritorially [outside the sovereign's territory]. (Berry, pp.337-8)
"Aliens" are persons who relocate permanently to one country, while they are still citizens or subjects of some other country. Presumably, aliens intend to renounce their allegiance to their country of origin and become naturalized citizens of the country of their new permanent residence. In contrast, "foreigners" are temporary visitors who retain citizenship and permanent residence in their home country and intend to someday return to their home country [32].
In the general sense, the eighteenth-century meaning of "foreigner" was not limited to persons born in a foreign country. If you are a citizen or subject of a foreign country, you are a "foreigner," regardless of your residence or place of birth.
So someone who is a citizen of the United States could be also an alien, if he or she retains or acquires foreign citizenship, and could also be a foreigner if he or she was born outside the United States—even if the person no longer had any foreign citizenship. Note also that a US citizen born in the US could become an alien simply by acquiring foreign citizenship. So the fact that the Supreme Court has defined "natural born citizens" as distinct from "aliens or foreigners" excludes anyone who either has foreign citizenship or was not born in the United States from qualifying as a "natural born citizen."
Starting with the very next sentence following the first quote from the case given above, the Court then continues to discuss the fact that yet other persons could be citizens who don't qualify as "natural born citizens." To understand the message the Court intends to convey, it is important to remember that the issue on which the court was focusing was whether or nor the petitioner was a citizen regardless of the first sentence of the 14th Amendment. The definition of "natural born citizen" was relevant solely because a) Article II, section 1 establishes "natural born citizen" as the strictest class of citizenship, and b) anyone who qualifies as a "natural born citizen" necessarily qualifies as a citizen:
… Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts [regarding citizenship, but not regarding "natural born citizenship"], but never as to the first [because anyone who qualifies as a "natural born citizen" is a citizen beyond dispute]. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words "all children" are certainly as comprehensive, when used in this connection, as "all persons," and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.
The Court notes in passing that those born in the United States, regardless of the citizenship status of their parents, may nevertheless qualify as citizens. The fact it uses the word "citizens" in that clause instead of using the phrase "natural born citizens" categorically falsifies any claim that the Court intended to convey the idea that anyone born of non-citizen parents might possibly be "natural born citizens." The doubt the Court was expressing concerned whether or not such persons might even be citizens at all. The Court goes out of its way to ensure we don't miss this crucial point by referring to those about which there were doubts regarding citizenship as "this class," thereby explicitly identifying those born in the country to non-citizen parents as a separate and distinct class, as members of a set disjoint and distinct from the set (class) of "natural born citizens."
Note also that the Court's discussion regarding persons born in the US to non-citizen parents is dicta, because it was not used as grounds for any of their holdings in the case. They actually state that such questions have no relevance to the case before them—thereby explicitly labelling their discussion of any hypothetical class of citizens beyond the class "born in the US of citizen parents" as dicta.
The Court then compares the facts of the petitioner's birth against the definition of "natural born citizen" that it determined to be Constitutionally and historically correct, and concluded that, since the petitioner was born in the US to parents who were US citizens at the time of her birth, she was in fact a "natural born citizen" and so also necessarily a citizen of the United States. That's why there was no need to consider whether any alternative definitions or theories of citizenship could be used to assign citizenship. The Court saw no need to concern itself with citizenship acquired by naturalization, nor with any other classes or types of citizenship based on any other theories, "natural law" and/or English common law definitions or other Constitutional clauses, such as the first sentence of the 14th Amendment. Therefore, they exercised proper judicial restraint and left those questions undecided.
Remember that, per Ogilvie, if the Court uses any of the quoted conclusions above as "independent grounds" for any of its precedentialholdings, then these conclusions are also precedential holdings—and that that rule is transitive: any conclusion or decision used as "independent grounds" for a later holding is itself a holding, recursively back to ever earlier decisions and conclusions.
The Supreme Court itself held that its definition of "Natural Born Citizen" in Minor was a holding:
LOCKWOOD, EX PARTE, 154 U.S. 116 (1894):
In Minor v. Happersett, 21 Wall. 162, this court held [So it was not dicta] that the word 'citizen' is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since; but that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment did not add to these privileges and immunities. Hence, that a provision in a state constitution which confined the right of voting to male citizons of the United States was no violation of the federal constitution.
Note also that, since the citizenship issue in Minor was decided by defining "natural born citizen" based on the text of Article II, section 1, but the citizenship issue in Wong Kim Ark was decided based on the first sentence of the 14th Amendment, the two decisions do not conflict with each other. Therefore, Wong Kim Ark does not supersede Minor.
It is worth noting that, had the petitioner in Wong Kim Ark been a "natural born citizen," failure to simply use the precedent established in Minor to rule that Wong Kim Ark was a citizen would have been a failure to abide by judicial restraint. The fact that the Wong Kim Ark Court, unlike the Minor Court, decided that it was necessary to decide the citizenship issue using the first sentence of the 14th Amendment, instead of using the "natural born citizen" clause, demonstrates that a person who satisfies the 14th Amendment's qualifications for citizenship does not necessarily qualify as a "natural born citizen." The only reason to make a "first instance" interpretation of the first sentence of the 14th Amendment would be because the question could not be settled using any existing precedent, such as the one in Minor.
The settled law of the land is that the US President must be a natural born citizen, and that to be a natural born citizen, you must have been born in the United States to parents both of whom were US citizens when you were born.
You may disagree with the goal of the Constitutional Convention, and/or with the means they chose to achieve it. But it's not a technicality, not an anachronism no longer relevant in modern times, nor is it racist. Especially in modern times, it enables persons of any race or ethnic heritage to become President. And it's what the Constitution requires.
You may also disagree with binding precedent regarding the meaning of "natural born citizen" as established in Minor. But in our system, the Constitution, and the Supreme Court's interpretation of it, are the "supreme law of the land." And if one faction gets to disregard the Constitution and/or the Supreme Court because they disagree, then that sets a precedent where all other factions can do the same. And get away with it. Is that really what you want? foreigner,b, as much so before the adoption of the fourteenth amendment of the constitution as since; but that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment did not add to these privileges and immunities. Hence, that a provision in a state constitution which confined the right of voting to male citizons of the United States was no violation of the federal constitution. . a href=/i
I doubt that any State SoS’s or election board members have the courage to step up on this, REGARDLESS of party. They know they would be targeted for every sort of smear campaign, career and personal destruction, airing of every detail of their lives, and partisan attack. As rational beings, they will dodge responsibility unless put in an unbreakable hammerlock.
What I find shocking is that 3 years after exposure of a dangerous defect in the vetting process for POTUS (i.e., no one admits it’s their job to vet Constitutional qualifications for the office), no one in any state has succeeded in fixing it. Congress has not even tried. No hearings in the US House of Representatives. No proposed Constitutional amendment. No legislation, even in a state like Alabama, with Republicans in control of the state Senate, House, and Governorship.
the other “no” is no balls. In the Congress or USSC.
sourcery noted: “it also assumes that there are no highly-authoritative sources who strongly disagree.”
Which is the case. All the Vattel-birthers’ sources are either so old they were considering the situation before the 14’th Amendment and its interpretation in U.S. v. Wong Kim Ark (1898), or so new they only dug up the long-dead theory when they needed reasons why Obama can’t be president.
In our time, there has been no question that native-born citizens qualify as natural-born. No one was writing that /Black’s Law Dictionary/ had the definition wrong. When the journal articles by Gordon and Pryor stated that the eligibility of the native-born was clear and settled, no one came out in disagreement. That changed in October or November of 2008, with the first of Leo Donofrio’s losing lawsuits.
Or maybe I’m wrong. Maybe you can cite yourself blogging back in 2004 that Senator Hatch was incorrect to say, “Clearly, someone born in the United States or one of its territories is a natural born citizen.” Just cite yourself taking your position before Obama was the issue, and I’ll retract the above. I still won’t agree, but I’ll respect you as a principled contrarian, rather than someone who starts telling the rules different when he doesn’t like who is winning.
You have said nothing to show that the Supreme Court has not already defined “natural born citizen” as “born on US soil to parents who are citizens.” Nothing you or anyone else says or believes can supercede the authority of exist SCOTUS precedent. It’s the law of the land. So unless you can prove that’s not the case, and unless your comments are sequitur to that point, you can and will be ignored.
I must say this is the most concise and compelling explanation of the natural born citizen argument that I have seen yet. Thanks.
But perhaps you could explain to me how no one (at least so far) has had standing to present this argument before SCOTUS? Wouldn’t every citizen of the US have standing by the fact that they are under dominion of the POTUS? If the President can impose mandates upon my actions and livelihood, I would think that provides me standing. The minute the President signed anything into law that affects the US citizens directly, they should have standing to contradict his authority to do so...
Oh, I agree with you. But the courts don’t. That’s a whole ‘nother discussion.
sourcery wrote: “You have said nothing to show that the Supreme Court has not already defined ‘natural born citizen’ as ‘born on US soil to parents who are citizens.’ Nothing you or anyone else says or believes can supercede the authority of exist SCOTUS precedent. It’s the law of the land. So unless you can prove that’s not the case, and unless your comments are sequitur to that point, you can and will be ignored.”
So that would be no, this isn’t a position you took before you wanted reasons why Obama cannot be president. For all your pretensions to constitutional scholarship, you only started telling the rules that way when you didn’t like who won.
I already quoted three real judges on the bench of real court saying what the applicable precedent is:
“Based on the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents.” — Unanimous opinion of a three-judge panel of the Court of Appeals of Indiana, Ankeny v. Daniels 916 NE2d 678, 688 (2009)
Quite different from when you try cases in your head, isn’t it?
This Mark Hatfield from GA sounds a lot better than the one who was from liberal OR.
“But perhaps you could explain to me how no one (at least so far) has had standing to present this argument before SCOTUS?”
That’s myth. Many birther cases have been dismissed on grounds other than standing. The first birther application to SCOTUS was on Donofrio v. Wells, in which standing was not an issue. It was a New Jersey state case so the federal standing doctrine did not apply.
The plaintiffs in Ankeny v. Daniels got a clear opinion on just this issue from the Court of Appeals of Indiana:
“Based on the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents.” — Unanimous opinion of a three-judge panel of the Court of Appeals of Indiana, Ankeny v. Daniels 916 NE2d 678, 688 (2009)
Ankeny and Kruse petitioned for transfer to the Supreme Court of Indiana, which denied transfer with all justices concurring. At that point they could have petitioned for certiorari to the SCOTUS and argued that “a state court [...] has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.” See Rules of the U.S. Supreme Court, Rule 10(c).
The plaintiffs decided not to petition for cert.
Remember when the Vattel-birthers, particularly the lawyers, were excited about assisting Steve Ankeny and Bill Kruse in preparing their petition for cert, because Ankeny v. Daniels drew such a clear opinion on the NBS issue from a state court in conflict with the real federal definition? I expect you don’t remember it, because it did not happen. It was far and away the best chance Vattel-birthers ever had to get a SCOTUS opinion on their theory, and they cowered out. ‘Twas not o-bots who stopped the U.S. Supreme Court from reviewing the Indiana court’s opinion that the native-born are natural-born; ‘twas birthers.
If there’s one thing birthers hate more than not getting answers to their questions, it’s getting answers to their questions.
IMNSHO, several of the cases contain elements worthy of the august appellate body's attention. I believe my opinion is shared by, among others, Justice Thomas. He has publicly stated that the SCOTUS is ducking this issue.
If you refuse to take a clue from anything less than a SCOTUS ruling specifically on Obama’s eligibility, then Obama remains president and you remain clueless. Obama seems fine with that. Does it work for you?
Well, no actually. This does not work for me and several million (at least) other citizens when a simple question about the Constitution is left unanswered. This issue goes quite beyond Obama, who is now for all intents and purposes a bit of a "lame duck."
"What exactly is a "Natural Born Citizen?" Pardon me for preferring a ruling of the SCOTUS to your interpretation of past cases, which may or may not affect it the decisions of those actually paid to interpret the Constitution. You seem to feel that the question is settled. Possibly so. In that case, let the Justices speak for themselves. If they are not too busy, of course.
I usually hate hypotheticals, but I am going to do one anyway.
Since our constitution mentions, but does not clearly define what a “natural born citizen” is.
And there have been different interpretations as to what this means.
Would it matter if both houses of congress passed, and the president signed a bill that simply stated:
A “natural born citizen” shall mean a person born within the territory of the United States to two parents who are both United States citizens”.
Would such a bill hold water?
Would it matter?
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