Posted on 02/17/2012 8:28:43 AM PST by Seizethecarp
“At issue is nothing less than the enforcement or loss of constitutional rule of law,” he submitted to the court. “The petitioner’s right to live in a constitutional republic will be lost if the clearest terms of the U.S. Constitution will not be enforced by the judicial branch of government.”
He said if the judiciary does not take the appropriate action, “it would confirm that the judicial branch is now unwilling to enforce the clearest and most basic requirements of the U.S. Constitution.”
His appeal explains that Malihi’s opinion defies logic.
“[His] conclusion runs contrary to common sense, violates venerable rules of constitutional construction followed by the U.S. Supreme Court since its inception, and violates the explicit holding of the Supreme Court case relied upon. Had the drafters of the Constitution intended all people born in the U.S. to be considered natural born citizens, the 14th Amendment would not have been necessary. Had the drafters of the 14th Amendment intended that amendment to alter the Article II definition of natural born citizen, they would have clearly stated so. Yet the term ‘natural born citizen’ is not found anywhere within the 14th Amendment. The amendment also makes no reference to Article II. The [Malihi] ruling, therefore, violates rules of construction that the OSAH had itself relied upon just days earlier in the same litigation,” the brief explains.
It explains Malihi also ignored a Supreme Court precedent in favor of a non-binding opinion from Indiana.
“Contrary to popular opinion, voters are not the final arbiters of whether an individual is qualified to hold office. In a constitutional republic the power of the majority is limited and cannot infringe upon constitutionally protected rights of a minority,” the brief argues.
(Excerpt) Read more at wnd.com ...
Who cares about msnbc?? You're missing the big picture. The Supreme Court was willing to grant that Virginia Minor would have been eligible to run for president, but they had NO legal precedent to say that she had a right to vote. The Wong Kim Ark decision affirmed this holding, but ironically it wouldn't allow it's own litigant the right to run for president, even though he may have been able to vote. Ironic, but true. Those are the facts. Minor said, "Our province is to decide what the law is, not to declare what it should be. We have given this case the careful consideration its importance demands. If the law is wrong, it ought to be changed; but the power for that is not with us." Somehow, the GA ALJ thinks he has the power to change the law and make Obama eligible to run for president. Weird, but wrong.
Good luck with that definition. How about those links?
What recourse do they have when the legislative branch becomes inept?
What can anyone do when there is no effective checks and balances in place?
Some speak of an impending Constitutional crisis. It's already here.
Seems I recall an ancient document that begins like this " When in the course of human events......"
The Minor case concerned an NBC, Mrs, Minor, whose citizenship was in a class (NBC) about which there was no doubt.
The Minor court did not need to resolve the doubts about children with one or more non-citizen parents because they could not “reach” that issue because it did not apply to Mrs. Minor.
It was the WKA court that resolved the doubts about a sub-class of non-NBC children who met all of the qualifiers listed by the WKA court. The WKA court did not declare WKA to be NBC as the Ankeny court admits (and also Malihi)."
That was very well said, and bears repeating. Thanks.
And I might add, both cases are classic examples of the principle known as Judicial Restraint. From Minor: “For the purposes of this case, it is not necessary to resolve those doubts.”
0bama has access to information that, (in order for ordinary people to have access), requires a THOROUGH background investigation and official documents submitted...
Documents required include a certified copy of their birth certificate with raised seal.
Plus all names used and documents showing legal changes.
(Probably includes any adoption records)
Did he ever provide these?
If not, then
EPIC FAIL
Anybody bring a challenge based on the above ‘fail’?
According to whom?? There's no evidence Obama was ever subjected to any background information, and even if it did, no such investigation would mean he couldn't have been born somewhere other than Hawaii. The alleged birth documents Obama has provided only showed up in 2008. No background investigation was based on any of these alleged documents since he didn't have them.
That post should say, “There’s no evidence Obama was ever subjected to any background INVESTIGATION ...”
Please do not play dense. Here is how this works. We establish what WAS, we establish when and how it was changed, and then we establish what IS.
I will take it from your response that you concede the point that in 1845,(I will point out that Lynch v Clarke was in 1844, and the legislature of New York explicitly rebuked the court's decision with this new law.) the law (In the State of New York and others) was that a child of transient aliens was NOT a citizen, and therefore birth on the soil would NOT make someone a "natural born citizen". If my understanding of your position is correct, then let me know.
There is no point in discussing 1961 until we have solidified what was the law prior to the 14th amendment. I have shown you evidence that "birth on the soil" was not the sole requirement. (as if the proof of Indians, Slaves and diplomats wasn't enough)
My statement stands. The Birthers do not seem to have put any thought into how Minor would get spun in the media.
I’m glad you admit the media is not honest, but it’s a moot point as I just explained, so your statement fails.
You have to read a piece of law to understand common sense? I begin to see what your difficulty is. :)
If an animal is born as a Sheep, no act of congress will cause it to be a Horse. Congress may CALL it a "Horse" but it will remain a Sheep. The Supreme Court may Decree that it is a "Horse" but it is still a sheep. Congress may pass a law which says that all dictionaries must hereafter describe the animal which is currently known as a sheep, as a Horse, but this is just games with words, similar to what your side tries to do with the words "natural born citizen."
Congress could call anyone born in January a "natural born citizen" but it would not be correct or accurate.
Doesn’t the president get briefings on national security matters?
Did other presidents get ‘vetted’ for access to said information?
If 0 didn’t get cleared, it means he has totally bypassed the requirements for access to classified information!!
You do realize that the significance of it was not?
And that American citizenship was a federal issue, not a state issue? If this law had been challenged it would have been deemed unconstitutional. However, that did not happen because of the Civil War and was then rendered moot by the 14th Amendment.
You have a simplistic understanding of the History and Dynamics at work. What the document proves is that there was no "jus soli" standard for American Citizenship prior to the 14th amendment. Citizenship of a state was left up to the states, and The Federal Government would accept the state's determination on who was and who was not a citizen. (except in at least one case of which I am aware.)
The Constitution granted Congress the power to "NATURALIZE", not to decide who would or would not be "born" a citizen. That power was left to the states. (Until the 14th amendment.)
Your NY Code simply documents the fight over how states and the federal government would share power. Before the 14th amendment states had a say in who was a citizen and what rights they had. The states have not had a say in citizenship since the 14th.
Yes, but the 14th amendment did not change the original meaning of "natural born citizen." They SPECIFICALLY avoided using the words "natural born citizen" in the amendment. The 14th created "citizens", not "natural born citizens." The Congress which passed the 14th amendment knew of the term "natural born citizen" because they used it during the debate. That they CHOSE not to include it in their Amendment demonstrates that they did not intend for the one thing to be mistaken for the other, as it is routinely nowadays.
Likewise, the Gray Court, when deciding the Wong Kim Ark case, specifically did not use the term "natural born citizen." They used the term "citizen."
The 14th amendment "naturalized" former Slaves. Natural citizens did not need, nor did they derive their citizenship from, the 14th amendment.
The president does NOT go through a background investigation. Feel free to find ANY official source that says he does.
The applicable interpretations and laws are what was in 1961. That’s pretty well established – born in the US (usual exceptions) equals natural born. As I have said many times, if you disagree, work to have it changed, but don’t claim the court decisions haven’t happened, or rail about the court being wrong and expect it to have an effect.
I will take it from your response that you concede the point that in 1845,(I will point out that Lynch v Clarke was in 1844, and the legislature of New York explicitly rebuked the court's decision with this new law.) the law (In the State of New York and others) was that a child of transient aliens was NOT a citizen, and therefore birth on the soil would NOT make someone a "natural born citizen". If my understanding of your position is correct, then let me know.
If you read up on it, there was a wave of anti-immigrant feeling from 1830 to about 1860, evidenced by the Know Nothing party, the Native American party, etc. There was widespread anti-Catholic sentiment, and reaction against the floods of immigrants from Ireland and Germany. New York was getting a large proportion of the immigrants. The Native American Association was very active in New York, and there was a petition (p31) to change naturalization laws, requiring 21 years residence in order to vote. Given the sentiments of the time, no surprise that New York code might include this, but it's irrelevant.
You will of course know that what you posted applied to a citizen of New York but could not supersede Lynch v. Clarke in unmaking someone a citizen of the United States. From Lynch v Clarke:
So whatever the New York legislature passed, the court had already ruled with regard to US citizenship.My conclusion upon the facts proved is, that Julia Lynch was born in this state, of alien parents, during their temporary sojourn. That they came here as an experiment, without any settled intention of abandoning their native country, or of making the United States their permanent abode.(a) They never concluded to remain here permanently, and after trying the country, they returned to their native land, and there ended their lives, many years afterwards. They took Julia with them to Ireland; she continued to reside there, and when Thomas Lynch died, she was about fourteen years of age, and a resident of Ireland….[p 638]
Second. Such being the rule of the common law, in the absence of express legislation, the difficult question is presented for decision; is the common law in this respect, the law of this state, or of the United States ? If it be the law here, then Julia Lynch was a native born citizen, and inherited the property in controversy; assuming that it was the property of Thomas Lynch, as alleged in the bill of complaint….[p639]
And the Constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. ” No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President,” &c. The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the Constitution ? I think not.[p656]
There is no point in discussing 1961 until we have solidified what was the law prior to the 14th amendment. I have shown you evidence that "birth on the soil" was not the sole requirement. (as if the proof of Indians, Slaves and diplomats wasn't enough)
The applicable interpretations and laws are what was in 1961. You maintain the laws and interpretations were wrong, because the Founders actually meant something different. You have shown me that New York citizenship was denied to children of transients (SAD was domiciled in Hawaii) but not that US citizenship was denied. You even cited the NY Chancery case that showed US citizenship was not denied to children of transients. (And I have answered your Indians and Slaves objection multiple times. And arguing about diplomats, who are excepted from the laws of the host country and thus not "subject to the jurisdiction" is absurd.)
And this is where your disdain for legal matters becomes clear. Like any discipline, there are meanings to certain words inside the discipline that are not the same as they are in common use. If you are claiming a specific legal meaning, link or cite. If you are trying to use your "common sense" idea of what they mean, that is not binding on the law.
Exactly! So Minor did not "define" NBC, Minor merely defined one route to NBC and declined to rule on any other possible members of the category. We agree.
I'm not the one with an honesty problem. (Cough, quote butcher, cough.)
The case was about a citizen by statute. But the quote is clear enough - the United States follow the English concept, jus soli. And jus soli means "born on the soil = natural born."
“Exactly! So Minor did not “define” NBC, Minor merely defined one route to NBC and declined to rule on any other possible members of the category. We agree.” /s (fixed it)
Wrong, of course.
Having defined NBC children as “no doubt” those born in the country to citizen parents, MvH’s doubts were about the citizenship of non-NBC children which MvH divided into two categories:
1. Those non-NBC children considered citizens at birth
2. Those non-NBC children NOT considered citizens at birth
The WKA court declared that WKA was in the first of these two non-NBC categories.
The sentence in MvH in which doubts are expressed has “citizens” as the subject, NOT “natural born citizens.”
From Minor v Happersett:
“Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of the parents. As to this class there have been doubts, but never as to the first.”
Yet some people insist on substituting “natural born citizen” into that sentence for “citizens.”
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