SCOTUS, POTUS, and Onus (Part 1)
My post about the experience resulted in a couple of emails - some with a typical Obot response ("When you come out of your mother's basement, Obama will still be president"), some that simply continued to state the previously proven erroneous facts ("He already posted his birth certificate online. Adjust your tin foil hat and get over it."), and lo and behold, some that asked questions. So I want to elaborate a little more on the issue and why I think some of the rumors floating around the internet right now are nothing more than distractions - distractions that may actually be intentional.
First, to say that there has been little to no media coverage of any of this is an understatement. I can count the number of times I've heard mention of Obama's natural born citizenship issue on television or radio on one hand - and every single time, it's been accompanied by chuckles or some comment about "right wing loons" or bloggers. (An aside - I think it's time America and the media came to realize that bloggers are no longer confined to geeky, unshowered, lonely men living with their mothers. Most of the bloggers I know are married, professional, well-educated, socially acceptable men and women. Although sometimes, I am unshowered so I guess I'll give them that.) I'm about 99% certain, however, that if this was an incoming Republican administration that the coverage would most assuredly be different. The media outlets would be falling over eachother trying to be the first to "scoop" the latest information.
Let me ask you a question.
If a SINGLE lawsuit had been filed during the election about Sarah Palin's constitutional eligibility to be (Vice) President of The United States (POTUS), do you think you'd have heard about it? Probably, depending how low it was on the court totem pole, right? What about if it was before the Supreme Court? Yeah, unless you live under a rock, you'd hear about it - it would be the breaking news every hour. What if there were, oh let's say over THIRTY lawsuits with FIVE of them at the Supreme Court level? Can you say "media frenzy"? She'd have been done in right then and there. I can just see Keith Olbermann salivating over that story, can't you? It wouldn't matter if the lawsuits were brought by death row inmates - they'd all be credible and there wouldn't be a seat available on any flight to Alaska with all the media flocking there to dig up information.
One more question. What if it was Barack Obama?
(crickets)
That's right. There are five lawsuits currently pending with the Supreme Court of The United States (SCOTUS) regarding Barack Obama's constitutional eligibility to be POTUS. The Right Side of Life is trying to keep up with the current status of all these suits nationwide, but as the list keeps growing, I'm not sure how successful they'll be. Yet, the only attention these suits are getting is from bloggers, and apparently we're ALL missing some critical DNA. Yep, even the attornies involved. All crazy. Even the ones who are (gasp!) democrats.
Ok, I lied. I have another question. How often is it acceptable for the judge in an active case to meet with a defendant behind closed doors, without attornies present? Yeah, just checking. Again, substitute the name "Palin" for "Obama" and tell me what the outrage would be. Granted, Chief Justice Roberts has some pretty solid job security, but if that meeting had taken place with a Republican administration or God forbid, Sarah Palin, it would have been political suicide for him and would never have happened. Sorry, I digress....
If you do some reading on these cases - which, by the way, I highly recommend if for no other reason than to educate yourself on the true constitutional requirements for the presidency - you'll find that the majority of them deal primarily with Obama's birth certificate (or the supposed lack thereof) and the allegations that he was born in Kenya, not Hawaii. While there may or may not be some truth to those allegations, I have a feeling that we may never know. And honestly, it doesn't matter.
Obama may be a lot of things, but he's not stupid. In fact, I think he's wicked smaht. This is a guy who taught constitutional law, for cryin' out loud. Are you going to tell me that he knew he was born in Kenya and still thought it was possible to run for president - and then knowingly posted a fraudulent substitute birth certificate on the internet? Maybe, maybe not. Either way, it was enough to satisfy his supporters, especially those who are ignorant enough of our legal code. But again, I don't think he's that stupid. Eventually, somebody somewhere would get their hands on the real thing, leaving Obama open to exposure or, even worse, blackmail. Although, given the public's general propensity to just shrug off anything negative regarding The One, who knows if exposure would even matter? But blackmail would. You can't tell me that Obama's not an egomaniac and a control freak (let's face it, most presidents probably are), so I doubt that he wouldn't have thought that through enough to know he would be giving up power, even if it was potentially behind the scenes.
But what if there was something else? What if, because of his constitutional law background, Obama DID know he was ineligible to run? When you want to throw a tracking dog off a scent, you give it another one to follow to confuse it, right? Let's just assume for a minute that Obama was telling the truth (for once) about his birthplace - although he might need to get his stories straight about which hospital he was born in. What better way to throw people off of the real issue than by getting them wrapped up in a phony one? By not releasing his long form birth certificate and going along with the governor of Hawaii's "sealing" of his documents, Obama is creating the illusion of impropriety, which I believe to be intentional. The media and the general public are convinced that anybody who believes his birthplace is really in question is nutty anyway, so when the official long form birth certificate is "accidentally" released and, WOW-LOOKY-THERE, it shows his actual birthplace as Hawaii ... any and every current and future lawsuit challenging his eligibility is immediately discredited, if they aren't already.
So if Obama was actually born in Hawaii as he claims, then there's no eligibility issue right?
Wrong.
The requirements for presidential eligibility are quite clear. A candidate must be a natural born citizen. Not just a citizen. Not a native citizen. Not a naturalized citizen. And no, they aren't the same thing. What's the difference?
Despite popular belief, the 14th Amendment does not convey the status of “natural born Citizen” in its text. It just conveys the status of “Citizen”. And it’s very clear that in the pre-amendment Constitution, the Framers made a distinction between a “Citizen” and a “natural born Citizen”. The requirement to be a Senator or Representative is “Citizen”, but the requirement to be President is “natural born Citizen”. Specifically:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
But even as to this conveyance of citizenship, those who were responsible for drafting the 14th Amendment made it clear that - to them - the meaning of “subject to the jurisdiction thereof” meant subject only to the jurisdiction thereof.
Dr. John Fonte, Senior Fellow of The Hudson Institute had this to say about the issue at a Congressional hearing on dual citizenship from September 29, 2005:
The authors in the legislative history, the authors of that language, Senator Lyman Trumbull said, ”When we talk about ’subject to the jurisdiction of the United States,’ it means complete jurisdiction, not owing allegiance to anybody else.” Senator Jacob Howard said that it’s ”a full and complete jurisdiction.”
This illustrates that Congress recently discussed the issue, and they can’t claim they were unaware. Moreover, the following discussion by the various 14th Amendment Framers took place on the Senate floor. Taken from P.A. Madison’s research at http://www.14thamendment.us/articles/anchor_babies_unconstitutionality.html (use his link for footnotes):
It is clear the framers of the Fourteenth Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil. Again, we are fortunate enough to have on the record the highest authority tell us, Sen. Lyman Trumbull, Chairman of the Judiciary Committee… and the one who inserted the phrase:
[T]he provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ’subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.
Rep. John Bingham of Ohio, considered the father of the Fourteenth Amendment,
confirms the understanding and construction the framers used in regards to
birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:
[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…[6] (Emphasis mine.)
It’s important to note this statement was issued by Bingham only months before the 14th Amendment was proposed.
We also get a clear cut textbook definition of natural born citizen vs. other types of citizenships here:
§ 212. Citizens and natives.
The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are
citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country. (Emphasis mine.)
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. (Emphasis mine.)
6 COMMENTS:
The question is not IF there will be an interdiction of Obama’s Presidency by the Supreme Court, the questions are WHEN and HOW that interdiction will transpire — that is, if the USA is to continue as the Constitutional Republic that now exists.
ConstitutionWatch.org has been on the sidelines during the discussion of Barack Obama's status as a natural born citizen. Just before his inauguration-they have jumped into the battle with both feet.
ConstitutionWatch.org jumps into the Obama birth certificate fray
The Intellectual Redneck said...
detailed instructions on how to get an original vault copy of a Hawaii birth certificate. Of course Obama is President. He would not need to do anything but have someone pick up the phone. This is just to show you anyone can easily do it. Obama supporters spread so much untruth. :(
'When requesting a certified copy of your birth certificate from the Vital
Records Section of DOH, let the clerk know you are requesting it "For
DHHL Purposes," and that you need a copy of the original Certificate of
Live Birth and not the computer-generated Certification. If mailing in your
request form, please fill in "For DHHL Purposes" in the "Reason for
Requesting a Certified Copy" section. (See example on page 6.)'
http://hawaii.gov/dhhl/applicants/Loaa%20Ka%20Aina%20Hoopulapula.pdf
They even show a sample copy of the vault record for those so blinded by Obama they thought that document was a myth.
http://bloggingredneck.blogspot.com/
Concerning “Natural Born” and whether it requires two parents who are US citizens AND the person being born in the USA or if merely born in the USA is enough.
This is the best shot Obama’s opponents have. They cannot prove he was born in Kenya. (He was born in Hawaii). They cannot prove that he lost his citizenship in Indonesia or because he used a foreign passport. (You can’t lose your US citizenship due to your parents actions when you are a child, and it is not even illegal [much less grounds for losing citizenship] to use a foreign passport if you have dual nationality).
So naturally we should all be interested and curious about the “natural born” assertion. But the born in the USA PLUS two parents theory is very much in the minority among Constitutional scholars. There has already been a Supreme Court case, United States v. Wong Kim Ark, which quoted British common law as to what a “Natural Born Subject” is, and it said:
“Children, born in England, of such aliens [those in amity - friendship], were therefore natural-born subjects.”
It made only two exceptions: (1) Children born to people who were NOT in “amity – friendship,” which referred to foreigners who were actually fighting against England, meaning invaders or occupiers, and (2) children born to persons who were not under the country’s jurisdiction, which has always referred to the children of foreign diplomats in the country.
So there are many constitutional scholars who agree with Republican Senator Lindsey Graham of South Carolina who said in an e-mail response to constituents that asserted that Obama was ineligible: “Every child born in the United States is a natural-born United States citizen except for the children of diplomats.”
Obama was not the child of a member of an invading army and he was not the child of a foreign diplomat.
But the most important thing to remember is that there is no such thing as a law in the abstract. If the Supreme Court takes up the Lightfoot case and ultimately agrees that a president must have two US parents as well as being born in the USA, then I would agree with you that he is not eligible. But if the Supreme Court finds that being born in the USA is enough, or if it does not take up the Lightfoot case, then the precedent of the United States v. Wong Kim Ark case applies.
I have already heard from one anti-Obama blogger who asked “and if the judiciary is corrupt?” To which I replied that asking that question was a lot like asking “and if the referees are corrupt?” after the football playoffs. I mean, if you rooted for the Eagles and were disappointed that they lost, that’s fine. But to argue that they lost because the referees were corrupt is crazy.
Two of the conservative Justices, Scalia and Alito, had fathers who were born in another country, Italy. It is true that their fathers were probably naturalized before the future justices were born. But that is not likely to affect their vote.
Affecting their vote more likely is the question that might arise in their minds: “Am I any more loyal because my father was naturalized before I was born than I would be if he were naturalized after I was born?” And the next question is “did the framers of the Constitution really believe that a president would be more loyal if his parents were naturalized before he was born than after he was born?’
Moreover, the very idea that someone who has a parent who was a foreign citizen at the time of birth is any less loyal than someone who has two US parents is absurd. It is like saying that because my father was a Baptist at the time of my birth, I have to stay a Baptist all my life, and when I become an adult, even if I have chosen another way, the Baptist influence is still upon me.
Who believes that? Probably not the writers of the Constitution, who were practical men.
And besides, the 14th Amendment says that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
“Jurisdiction” refers only to the children of foreign diplomats.
What kind of citizens are the ones who are born in the USA? Not naturalized citizens, Natural Born Citizens.
Now consider the Swiss legal theorist Vattel. That’s who you are quoting in this: “I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
But Vattel also writes: “Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.” (
§ 214. Naturalization. (58)
Does that mean that the child born in England is a natural born citizen according to Vattel? Perhaps not. But it strengthens the interpretation that British common law holds that all persons born in the realm are natural born subjects.
And Vattel is very out of date. He writes: “By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212).” But we have enacted divorce laws that say that the state has the right to decide who gets custody of the child (not only fathers), and when the state says that the mother gets custody then she can choose even the religion of the child.
Considering this dated quality to the Swiss theorist, and the fact that the Wong Kim Ark has ruled on the definition of “Natural Born Subject,” it is unlikely that the Supreme Court will decide that the theory that a person must be born in the USA and have two parents who were citizens has legal weight. It will consider the Lightfoot petition for Cert on Friday, and by Monday we will probably know its decision.
I would argue that the framers went out of their way to exclude future British subjects in the wording and was planning on addressing that very case in Part 2.
I would also argue that the "loyalty" of the elected as an ideology is not what was/is in question. The framers were, as you stated, reasonable men and knew that intent can only be known for one's self and can't be judged for others.
I disagree with you and hold that a Natural Born Citizen is merely a person born in the USA (excepting the children of foreign diplomats)—and Hawaii is certainly the USA.
The theory that a Natural Born citizen requires more than merely birth in a country stems from the early 18th century theorist Vattel, who held: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”
However, Vattel also wrote: “Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.”
So, clearly Vattel recognized that British law was different from the laws of other countries with regard to the birth of citizens. He thought that British law “naturalized” the children of non-British persons if they were born in Britain. But British common law was less complex than that.
It did NOT consider that the children of non-British parents were “naturalized.” It considered EVERY CHILD born in the realm (with minor exceptions such as the children of diplomats) to be “Natural Born Subjects.” And our law stems from the British Common Law. Our definition of “Natural Born Citizen” is the same thing as “Natural Born Subject” except that we are not subjects of a king.
And, according to the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal.” That cannot mean that a child born in America with parents who are citizens has the right to be president and a child born in America who has only one or even no parents who are American citizens does NOT have the right to be president. In the eyes of the Declaration they are, and should be, equal under the law.
Would it be a good thing that we have two categories of citizens born in the USA, those that are the children of citizens and those that are not the children of citizens? If so, then how can they both be created equal? Why should a child whose parents were naturalized before her birth have any more rights than a child whose parents were naturalized after her birth?
Also, there is the strict constructionist argument. IF the writers of the Constitution had wanted to bar someone with allegiance to any other country, they would have said precisely that. They would have said: “no one with allegiance to another country,” Or they would have said: ” No dual nationals” Or they would have said: “A Natural born citizen is one who is born in the USA of parents BOTH of whom were citizens.” But they left Natural Born Citizen just as ordinary language—implying that it is the same thing as “Natural Born Subject.”
Also, it is likely that Article II was amended to some extent by the 14th Amendment which says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. “
Critics of this meaning that Natural Born means simply that someone was born in the USA say that this merely refers to the large category of ordinary citizens and not specifically to the requirements to be president. Quite true.
But the 14th Amendment sets up two categories of citizens, those that are naturalized and those that are born in the United States. It is difficult to see why those that are born in the USA are not Natural Born Citizens. Meaning why shouldn’t an interpretation of Article II use the 14th Amendment as guidance as to citizenship? At the very least, the 14th Amendment gives guidance to the definition of Natural Born Citizens, tending to confirm that Natural Born Citizen means the same thing as Natural Born Subject under British Common law. The exclusion of “subject to the jurisdiction” has always referred only to the children of foreign diplomats.
There are those that say that “natural born” is not the same as “native born,” and that it is a broader category. That is, “natural born” includes all persons born in the USA, plus the children of US citizens who were overseas at the time of the birth. Yale Law Review points out that in the 1980 Census over a million persons were shown to have been born abroad to US citizens.
http://yalelawjournal.org/images/pdfs/pryor_note.pdf, and see footnote 2. I would suspect that the million has increased to say, 1.5 million since 1980, which amounts to about 0.5 percent of the population. McCain would be one of the ones who fall into this category.
This definition adds to the usual definition that “natural born” is merely “native born,” BUT it does not require that a Natural Born Citizen be both born in the USA and the child of two citizens. Only Vattel does that, and not even that with regard to English law.
A final point is the question whether my parents’ nationality at the time of birth truly affects my allegiance in any way. This is like saying that because my father was a Baptist at the time I was born, I must be a Baptist all my life. Nobody believes that today, and it is just as hard to believe that the writers of the Constitution believed that absurdity in the 18th Century.
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