Replies

jamese777, there is a problem with relying on Ark for your over-broad definition of NBC. Dicta does not create precedential control. You have to look to the holding, and the rather narrow holding in Ark by no means precludes a negative finding for cases more like O’s. See post 51 over here:

http://www.freerepublic.com/focus/bloggers/2307163/posts?q=1&;page=51

This is a common mistake in legal analysis. Dicta is interesting and informative, and is often the most quoted element of any case (who can forget O’Conner’s “sweet mystery of life” deal in Lawrence v Texas), but it is mere judicial rant, background material only. The logic in the dicta may lead to the conclusion in the holding, but it is not binding under stare decisis as the holding is.

No, SCOTUS has yet to render a binding decision that tells us what NBC would mean for some in O’s exact circumstances. If the originalists dominated, they could easily defer to external historical sources to round out the definition. If so, the whole Vattel Law of Nations/John Jay thing would tilt that analysis in favor of requiring undiluted, unquestionable US citizenship in the parents as a prerequisite to NBC. Alternatively, if the Globalist mindset dominates, the parentage dimension of NBC could be thrown out altogether. We are all “citizens of the world,” don’t ya know.

BTW, there really are at least three routes to citizenship in constitutional case law. Naturalized citizen, native born citizen, and natural born citizen. It would have been nice if the cases had used these terms consistently, but the unfortunate fact is that sometimes “native born” simply addresses the “born here” problem and sometimes it appears to merge with “natural born.” One thing I learned in Con Law is there is no divine inspiration in constitutional case law guaranteeing consistent use of terms. This happens all the time, and usually it is only resolved, if ever, when some perfect case comes along where SCOTUS untangles all the preceding terminological confusion and lays down a clear rule. That is what they should do here. Do I think they will? Nah. The political infection of the judicial process has been strong since FDR, and it got a lot worse after the 2000 election, so I do not presently believe we should be hoping for a SCOTUS rescue.

Why then pursue this “will-o-the-wisp?” Because it is a great American tradition to seek the truth about our political leaders. That’s just how we do things here in America. Truth has a power all its own, even if the political and judicial processes do not immediately cooperate. Exposing fraud in the electoral process, especially fraud of this magnitude, can be a teachable moment for the Republic. If proven true, it will suck the life out of the present administration and render them impotent until they can be replaced. You know, like the person you can’t fire right away, but you give them a job where they can’t break anything important until their contract is up. That makes this worth pursuing. Only we can’t pursue it to the level expected by our opponent. We have to be better than they expect us to be. It is the only way to keep them off balance. Therefore, I ask that everyone keep a cool, objective head about the KBC. This could still go either way and we do not yet have sufficient information to commit ourselves. Stay focused on the key points that got the buzz to where it is now, mainly, the inexplicable resistance to making the long form public. That is resonating with lots of people, and that’s where the power is, and that’s what’s making Team O so nervous. Stay on the pressure point that is hurting them. That’s where the win is.