Holdings, Dicta, And Stare Decisis

-Submitted by David Drumm (Nal), Guest Blogger

Holdings, or ratio decidendi (Latin for “the rationale for the decision), are those parts of a court’s opinion that are binding on lower courts and later courts. This binding is referred to as the doctrine of stare decisis which provides hierarchical (vertical) and temporal (horizontal) continuity throughout the judicial system. Obiter Dicta (Latin for a statement “said in passing”), or dicta, are those parts of a court’s opinion that are not binding on lower courts and later courts. Dicta may suggest an interpretation of the law that may prove useful in future cases.

Distinguishing holdings and dicta is sometimes difficult and in some court opinions, intentionally so. Sub-categories of dicta, such as judicial dicta, and their different levels of authority, make the determination even more perilous. Dissenting opinions are always considered dicta.

Vertical stare decisis refers to the power of higher courts to bind the decisions of lower courts. All courts are bound by vertical precedent to follow the holdings in the decisions of the Supreme Court. Vertical stare decisis is generally considered absolute.

Horizontal stare decisis refers to the power of a court to bind itself. The Supreme Court while not bound by its prior decisions, does give them “substantial weight” in deliberations. There is a strong presumption that prior judicial articulations of the law are correct and generally should be followed. Horizontal stare decisis preserves a stable doctrine and prevents cycling.

While “we hold that …” or “the rule is …” are frequently giveaways to holdings, it is no guarantee in the holdings/dictum debate. In United States v. Rubin (1979), J. Friendly, in a concurring opinion, wrote:

A judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word “hold”.

Consider the example found in Minor v. Happersett (1875), a Supreme Court case dealing with the constitution of the State of Missouri that ordains: “Every male citizen of the United States shall be entitled to vote.” The following passage is from J. Waite’s opinion:

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. 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, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

Portland Examiner contributor Dianna Cotter claims the reference to the natural-born citizen clause in this passage is part of the holding. The Wikipedia entry correctly identifies this reference as obiter dictum.

H/T: Legal Theory Lexicon, Judith M. Stinson, Michael Abramowicz and Maxwell Stearns, Robert G. Scofield.

1,351 Responses

  1. on 1, October 23, 2011 at 9:45 am Anonymously Yours

    Thanks nal and I suppose this answers martins question…


  2. “Horizontal stare decisis refers to the power of a court to bind itself. The Supreme Court while not bound by its prior decisions, does give them “substantial weight” in deliberations.”

    ********************

    A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.

    ~Ralph Waldo Emerson (Essays. First Series. Self-Reliance.)


  3. In retired Justice John Paul Stevens’ book, “Five Chiefs,” and in essays written since his retirement, he refers to some of these issues. It’s interesting reading as the legalese isn’t too bad.

    One of the reasons I started reading this blog was to gain an understanding of the Supreme Court … yes, there is a small joke there but I will leave it to others …. :)


  4. Blouise,
    Very funny! The Roberts Court can be understood using one word…corporations.


  5. on 1, October 23, 2011 at 11:02 am Woosty's still a Cat

    OMG…I’ve been dealing with a bunch of dictas….


  6. Woosty’s,

    There’s the joke! lol


  7. It’s all Greek to me. Cum grano salis.


  8. If a child is a citizen only if the parents are, you have made the problem twice as hard, and, by induction on the generations, difficult without limit.


  9. Nal,
    Great post. It certainly cleared something up for me.

    “Distinguishing holdings and dicta is sometimes difficult and in some court opinions, intentionally so.”

    This statement verifies that which I have always known in my heart. The Justice system, like the rest of the Government is in the business of deceiving the public rather than protecting them. Full disclosure is the best protection they can provide and it is the one thing they will not do.

    The idea that a court decision would be written in such a way as to confuse it’s meaning rather than clarify is perhaps the most disheartening of all the disheartening things I have heard about our government since i began my interest in it’s workings (or non-workings if you chose).

    One might hope that even if the other branches exert inappropriate force and influence, the courts would reign them in. I guess I shouldn’t be surprized that SCOTUS is justv as corrupt as the rest of the system but somehow I still am. I;m sure I’ll get over it in short order when my anger takes over from the disappointment. Not that I had full faith but perhaps just a little more than I had in the rest of the government. I guess Naivete’ sneaks up just when you think you are fully jaded.


  10. Eschew obfuscation!


  11. So, Bush v. Gore is neither horizontal or vertical. I guess that makes it a lone point, kind of a singularity, or black hole…


  12. “The court clearly states that, for this case, it is not necessary to determine if citizens born within the jurisdiction of the United States are natural-born citizens. That follows the classic definition of dicta.”

    “Clearly”, you have misquoted the Court.. Nowhere does the Court say that it was not necessary to determine if citizens born withing the jurisdiction of the US are natural-born citizens. Instead, the Court stated that it was not necessary to determine if persons born in the US without citizen parents are “citizens”. The Court did state “clearly” that those born in the US to citizen parents were natural-born citizens. The Court identified the class of natural-born citizens “clearly” and excluded those who were not born of citizen parents.

    Leo Donofrio


  13. Maybe, the only dough he’ll admit to taking in Public is this:

    Scalia Deep-Dish Pizza Ruling: Supreme Court Justice Calls Chicago-Style ‘A Tomato Pie’

    http://www.huffingtonpost.com/2011/10/20/scalia-deep-dish-pizza-tomato-pie_n_1021778.html?icid=maing-grid7|main5|dl6|sec3_lnk2|106202

    and 20 years later we’re still gittin’ chitlins’:

    Two decades later, Clarence Thomas is still a (relatively) young justice

    http://www.salon.com/2011/07/10/clift_clarence_thomas/singleton/


  14. Leo,

    Thanks for your comments. I agree, and have removed that sentence.


  15. Angrymanspeaks,

    You have apparently had the opposite view from mine: I have believed for 30 years that it is the courts that are responsible for really screwing up our government. Not that it wasn’t pre-screwed-up, I didn’t mean that we are sliding DOWN from some golden-age, no, just that as the screwing-up has been continual, the courts have continually been the dominant screwers.

    The reason I believe that is that the courts are working on precedent so that they hide (as unpublished, and even as impounded) the results-driven decisions they make which they do not want to stand as precedent, and then they mark as “PUBLISHED” all the decisions — most notably the worst, of course — that they DO want to stand as precedent. Executive branches of government are, of course, less uniformly horrible because each corrupt bureaucrat can only do so much, and he or she can be reigned in if necessary. Legislators cannot perform as atrociously as judges, of course, because they have REAL elections and face REAL opposition and they have to account for their decisions and answer for their votes.

    Anyway, who’s the worst? I don’t know. I vote for the JUDICIAL BRANCH.


  16. “Leo,

    Thanks for your comments. I agree, and have removed that sentence.”

    Thanks for updating the report. It’s not easy to do stuff like that, to reconsider things and act on such reconsideration. I applaud you for it.
    We still differ and I have addressed more below, but I respect you and hope that we will be able to find common truth one day.

    Let’s start with your conclusion:

    “Portland Examiner contributor Dianna Cotter claims this passage is a holding. The Wikipedia entry correctly identifies this passage as orbiter dictum.”

    I don’t think that’s an accurate conclusion based upon Ex Parte Lockwood, 154 U.S. 116 (1894), an essential case which confirms Minor v. Happersett as precedent on the definition of federal citizenship:

    “In Minor v. Happersett, 21 Wall. 162, this court held 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;”

    Please discuss this passage and then I will respond.

    Leo Donofrio


  17. Oops… my URL was wrong in the first two comments… I have reposted the link to this article at my blog.


  18. Orbiter Dicta: is this what astronauts say while circling the Earth?


  19. Leo,

    With regards to Minor, what constitutes a natural-born citizen is not necessary to sustain the result that confining the right of voting to “male citizens of the United States,” is not a violation of the Federal Constitution. Hence, dictum.

    Ex Parte Lockwood doesn’t mention natural-born citizen at all.


  20. Ralph,
    I wouldn’t listen to Scalia when it comes to pizza. Chicago Deep Dish is the best!


  21. The Court in Lockwood was not deciding anything to do with voting rights. The word “vote” does not even appear in that case. Neither does “natural born citizen” appear in Lockwood. So let’s forget about voting and natural born citizen for now… we will return to them later… and please read the following again and explain what precedent the Court in Lockwood was making reference to when they cited Minor.

    ““In Minor v. Happersett, 21 Wall. 162, this court held 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;” …


  22. Tweaked the last couple of sentences to emphasize that the natural-born potion of the quoted passage, and not the entire passage, was dictum.


  23. I’m curious as to how this misrepresentation as to Minor started and people became so adamant. It requires one to completely ignore the language which explicitly states that the court would not decide whether a person born in the US of alien parents is a natural born citizen as it was unnecessary to answer the question before them which involved someone born to citizen parents. “As to this class, there have been doubts …. 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.”


  24. blhls: Disagree. They would not decide whether a person born in the US of alien parents is a “citizen” not a natural born citizen. They needed to establish citizenship to this person to make the decision of the case. They did not need to establish the class of citizenship either. But this person was in the other class of citizenship, the class with citizen parents, the NBC class, which it was “never” doubted who those type of citizens are, right? That’s the whole point.

    So, per the Court, there is no doubt that NBCs are those who are born to citizen parents. No matter how you slice it, the definition is there.


  25. I keep seeing an s associated with parent and it’s becoming more apparent that the 2012 election could see a certain someone bow out.

    The question inquiring minds want to know now that the cat is out of the bag. Since we seem to have a clearer explanation of exactly what a NBC is, how will any new challenges be met in re to Obama’s status as an NBC ? Remember it was all moot and no one had standing the last go around.

    Ha ha I just noticed NBC as in GE. That may be the only thing Obama can affiliate with his status.


  26. Nal said, “Tweaked the last couple of sentences to emphasize that the natural-born potion of the quoted passage, and not the entire passage, was dictum.”

    I still wholeheartedly disagree with your conclusion. And I repeat my question from above. Just to be clear which question, here it is again:

    The Court in Lockwood was not deciding anything to do with voting rights. The word “vote” does not even appear in that case. Neither does “natural born citizen” appear in Lockwood. So let’s forget about voting and natural born citizen for now… we will return to them later. Please read the following again and explain what precedent the Court in Lockwood was making reference to when they cited Minor…

    ““In Minor v. Happersett, 21 Wall. 162, this court held 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;” …


  27. I have stated my argument for why it’s dictum. If someone wants to point out my error, they’re free to do so.

    If someone wants to argue why it’s not dictum, they’re free to do so.


  28. Nal I questioned you because it looks like Leo was asking you a question.

    “Nal said, “Tweaked the last couple of sentences to emphasize that the natural-born potion of the quoted passage, and not the entire passage, was dictum.”

    I still wholeheartedly disagree with your conclusion. And I repeat my question from above. Just to be clear which question, here it is again:”

    Was looking forward to your response or anyone elses for that matter but it looks like the thread has gone silent and it’s quite defining :)


  29. Sorry SB deafening, we were wishing for defining :)


  30. Obiter, Orbiter

    You say po-tay-to, I say po-tah-to
    You say tom-ay-to, I say to-mah-to
    Po-tay-to, po-tah-to
    Tom-ay-to, to-mah-to
    Let’s call the whole thing off!

    You say Obama, I say Orbama
    You say Yo mama, I sat Your mama
    Obama, Orbama
    Yo mama, Your mama
    Let’s call the whole thing off!


  31. Does anyone know of a case, in which a Court, any Court, decided that a portion of Minor was obiter dictum.

    If no Court, who cited Minor on citizenship declared it to be obiter dictum, why should the determination be left to someone who would benefit by making that determination?


  32. Any attorney quoting Wikipedia as a reference for legal opinions has to have a screw loose.

    Weazie is an Obama political operative.


  33. What’s your evidence that I’m a Obama political operative?


  34. Bdaman,

    Do you know of a case–any case–where a portion of a prior case was declared obiter dictum (or orbiter dictum for that matter…)? Is it unusual for it not to have happened in the case of Minor or would it have been unusual if it did? Because if you don’t know these things, then your argument is just a straw man.


  35. Bdaman

    “Does anyone know of a case, in which a Court, any Court, decided that a portion of Minor was obiter dictum.”

    There is this:

    Justice Morrow, Wong Kim Ark, District Court Northern District of California, January 3, 1896 No. 11, 198.

    “But the supreme court has never squarely determined, either prior to or subsequent to the adoption of the fourteenth amendment in 1868, the political status of children born here of foreign parents. In the case of Minor v. Happersett, 21 Wall. 168, the court expressly declined to pass upon that question.”

    And this,

    Court of Appeals of Indiana, Ankeny and Kruse, vs. Governor of the State of Indiana,

    “The United States Supreme Court has read these two provisions in tandem and held that “[t]hus new citizens may be born or they may be created by naturalization.” Minor v. Happersett, 88 (21 Wall.) U.S. 162, 167 (1874). In Minor, written only six years after the Fourteenth Amendment was ratified, the Court observed that:

    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. 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, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. Id. at 167-168. Thus, the Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.”

    And there are other legal authorities:

    Charles Gordon, ‘Who Can be President of the United States: The Unresolved Enigma” 1968, Maryland Law Review

    “The only question in the latter [Minor v. Happersett] case was whether a state could validly restrict voting to male citizens of the United States. The answer, since expunged by the nineteenth amendment, was that women could be denied the vote. In his generalized discussion, Chief Justice Waite observed that “new citizens may be born or they may be created by naturalization.” The court mentioned the presidential qualification clause and stated that it unquestionably included children born in this country of citizen parents, who “were natives, or natural-born citizens, as distinguished from aliens or foreigners.”

    “While this language appears to equate natives and natural-born, the Court specified that it was not purporting to resolve any issues not before it.”

    And this,

    J. Michael Medina, 1987, “The Presidential Qualification Clause in this Bicentennial Year: The Need to Eliminate the Natural Born Citizen Requirement” 1986 Oklahoma City University Law Review

    “Who is a Natural Born Citizen?”
    “The answer to the above question is, quite simply, we do not know. “The Constitution does not, in words, say who shall be natural-born citizen. Resort must be had elsewhere to ascertain that.”[Minor v. Happersett] Because no case squarely on point has arisen, resort must be had to the basic federal scheme of citizenship. It is only clear that naturalized citizens are not natural born.”

    On the question of dicta versus holding, there is the decision by the United States Court of Appeals, Seventh Circuit in United States of America v. John Allan Crawley, 837 F.2d 291

    “So instead of asking what the word “dictum” means we can ask what reasons there are against a court’s giving weight to a passage found in a previous opinion. There are many. One is that the passage was unnecessary to the outcome of the earlier case and therefore perhaps not as fully considered as it would have been if it were essential to the outcome. A closely related reason is that the passage was not an integral part of the earlier opinion–it can be sloughed off without damaging the analytical structure of the opinion, and so it was a redundant part of that opinion and, again, may not have been fully considered. Still another reason is that the passage was not grounded in the facts of the case and the judges may therefore have lacked an adequate experiential basis for it; another, that the issue addressed in the passage was not presented as an issue, hence was not refined by the fires of adversary presentation. All these are reasons for thinking that a particular passage was not a fully measured judicial pronouncement, that it was not likely to be relied on by readers, and indeed that it may not have been part of the decision that resolved the case or controversy on which the court’s jurisdiction depended (if a federal court).”

    So even if the Minor court held that Minor was a citizen, it did not need to decide if she was natural born and the single sentence about the definition of natural born “can be sloughed off without damaging the analytical structure of the opinion”.

    Finally, one need only read the first paragraph in the Minor opinion to see what the issues were:

    “The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone. We might, perhaps, decide the case upon other grounds, but this question is fairly made. From the opinion we find that it was the only one decided in the court below, and it is the only one which has been argued here.” Justice Waite

    Clearly, the question of citizenship was “not presented as an issue, hence was not refined by the fires of adversary presentation.”


  36. Please, for the love of God, change the “orbiter dicta” in the text of this post to the actual correct spelling, which is “obiter dicta.” Please don’t use Latin phrases unless you spell them correctly. I thought you were a proofreader.


  37. on 1, November 14, 2011 at 10:42 pm naturalborncitizen

    The US Supreme Court in Ex Parte Lockwood, 154 U.S. 116 (1894) held:

    “In Minor v. Happersett, 21 Wall. 162, this court held 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…”

    Justice Horace Gray who wrote the opinion in Wong Kim Ark was on the Court for Lockwood. Minor continues to be cited as good law for 100 years on both the definition of federal citizenship under A2 S1, and voting rights, and it is beyond question controlling law. Minor was not decided under the 14th Amendment’s citizenship clause.

    When the SCOTUS in Lockwood said…

    “In Minor v. Happersett…this court held…”

    it was a direct recognition of stare decisis on the federal citizenship issue.

    The Court construed A2 S1 and determined that Minor, having been born of citizen parents within the US, was a citizen BEFORE the adoption of the 14th Amendment and further held that she did NOT derive her citizenship from that amendment.

    Since she was in the “class” deemed to be “natives or natural-born citizens” her citizenship was not in doubt. The Court noted that the other “class”, those born in the US without citizen “parents”, was subject to doubt as to their citizenship. Some of those doubts were resolved as to persons domiciled permanently in the US under US v Wong Kim Ark, where Justice Gray cited the nbc passage from Minor as precedent.

    Furthermore, in Lockwood voting had nothing to do with the case at all.

    Those who refuse to acknowledge that Minor is a citizenship precedent, decided six years AFTER the adoption of the 14th Amendment, are in an irrational state of denial.

    Leo Donofrio


  38. “Those who refuse to acknowledge that Minor is a citizenship precedent, decided six years AFTER the adoption of the 14th Amendment, are in an irrational state of denial.”

    Actually, those who refuse to acknowledge Minor as a citizenship precedent are properly trained to read and interpret case law. The dicta correctly labeled as such quoted above was ancillary to the case at bar and gorefan’s excellent summary of why it is dicta shows the difference between someone who understands the logic and legal reasoning of a decision well enough to sort the dicta from the holding proper. Minor was a case about voting rights. Nothing more, nothing less. Anyone thinking Minor is a citizenship precedent is either incompetent to read case law or living in a fantasy land.

    There are plenty of really good legitimate reasons to criticize Obama. His escalated attack on civil liberties and his refusal to prosecute war criminals topping that list. However, the citizenship argument is facile crap usually pimped out to hide what the real motive for people making such a lame argument: simple racism.

    He’s a citizen.

    Deal with it.

    If you want to excoriate the President, start with his refusal to prosecute members of the Bush/Cheney administration for war crimes and his insistence that the Executive has the “right” to execute American citizens without Due Process. Those are actual and important issues.

    The Birther ship done sailed, boys, and she’s lost at sea.

    P.S. Really nice job there, gorefan. First class work.


  39. Justice Fuller, who wrote the Lockwood opinion, also wrote the dissent for the Wong Kim Ark opinion. In that dissent, he wrote,

    “And it is this rule [English Common Law], pure and simple, which it is asserted [Justice Gray's opinion] determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words “citizen of the United States” and “natural-born citizen” used in the Constitution as originally framed and adopted.”

    And later he writes,

    “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.”

    He writes about the meaning of the term “natural born citizen’ and the qualifications for being President but never mentions the Minor decision as having settled that meaning. He never cites it as precedent for the meaning of the term “natural born”. In fact, when he finally does mention Minor, he writes,

    “I do not insist that, although what was said was deemed essential to the argument and a necessary part of it, the point was definitively disposed of in the Slaughterhouse Cases, particularly as Chief Justice Waite in Minor v. Happersett, 21 Wall. 162, 167, remarked that there were doubts which, for the purposes of the case then in hand, it was not necessary to solve.”

    He never mentions Minor as defining “natural born citizen” but does mention that Minor decision did not solve the doubts about children born to alien parents.

    The one sentence in the Minor opinionn, “These were natives, or natural-born citizens, as distinguished from aliens or foreigners.” was not essential to the decision. And as the Court of Appeals, Seventh Circuit said “can be sloughed off without damaging the analytical structure of the opinion”.

    And as the Indiana Court of Appeals wrote in Ankeny v. the Governor of Indiana,

    “the Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.”


  40. Leo,

    Now, I’m not a lawyer–maybe one of the many real lawyers here can correct me if I’m wrong–but it seems to me that your argument comes down to some simple logic. If we let:

    A = a child born on the soil of two citizen parents

    and

    B = a natural born citizen

    then what the plain language of the two cases says to me is that the court in Minor said, “if (A) then (B), and we’re not going to say anything about (not A)” and the court in Lockwood said, “The court in Minor said, ‘if (A) then (B)’” (presumably because they had established A and wanted to establish B…).

    On the other hand, you seem to be saying “If (not A) then (not B)”. Well, as I said, I’m not a lawyer, but I am a mathematician and the error you seem to be making is a pretty basic one–not something I would expect someone with legal training to misunderstand. Could this be why you are content to try to persuade the gullible on the internet rather than put your theories to the test in court?

    Bdaman,

    What’s the matter, gorefan got your tongue? :-P


  41. on 1, November 14, 2011 at 11:27 pm naturalborncitizen

    Gen H said:

    “He’s a citizen.”

    This we agree upon. He’s a citizen, but I do not believe he is natural born.

    “Actually, those who refuse to acknowledge Minor as a citizenship precedent are properly trained to read and interpret case law. ”

    With all due respect, in the pursuit of legal truth, I submit without snark or ridicule, the following:

    What part of “this court held” do you not understand?

    Holding = precedent. This is not disputed.

    Acknowledge that you understand those words have such meaning and I will be happy to engage the rest of your comment. If you cannot acknowledge that Minor is historically famous for being a citizenship holding, then I see no point in discussing the issue any further with you.

    You should read this too:

    http://naturalborncitizen.wordpress.com/2011/10/09/multiple-instances-of-historical-scholarship-conclusively-establish-the-supreme-courts-holding-in-minor-v-happersett-as-standing-precedent-on-citizenship-obama-not-eligible/

    As to Gorefan’s comments, if he should choose to answer the following, I will be happy to address his comments, but I asked the following here first above. And I shall put it to anyone who cares to engage peacefully and with mutual respect:

    Please read the following and explain what precedent the Court in Lockwood was making reference to when they cited Minor…

    ““In Minor v. Happersett, 21 Wall. 162, this court held 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;” …

    Leo Donofrio


  42. on 1, November 15, 2011 at 12:02 am naturalborncitizen

    Slartibartfast,

    You have stated an argument, but it’s not my argument. And you have slighted me, but I will disregard the dig. Peace be with you.

    The Court in Minor separated those born of citizen parents in the US into one class, and those not born of citizen “parents” into another. They put Minor into the first class and said that this class were natural-born citizens.

    The Court further stated that there was never any doubt as to their “citizenship”. As to the second class, the Court stated they suffered doubts as to their “citizenship”. Minor’s class were undoubtedly citizens because they were natural-born citizens, the other class was not in the same class as the nbc class. The Court indicated that the second class might be “citizens”.

    But if that class were natural-born citizens, the Court would have put them in the nbc class. But the Court didn’t.

    The citizenship of some factions of the second class was later determined in US v Wong Kim Ark. But that case was decided under the citizenship clause of the 14th Amendment. Whereas, the Court in Minor was not required to construe the 14th Amendment, and instead construed A2 S1, the Court in WKA was required to construe the 14th Amendment. This was necessary because WKA was not in the natural born citizen class.

    If WKA had been deemed to be a natural-born citizen, as Minor was, the Court in WKA would not have reached for the 14th Amendment and would have avoided it as the Minor Court avoided it. But they couldn’t avoid it.

    Moreover, the Minor Court also held that the 14th Amendment granted no new privileges to anyone. So, if WKA was not POTUS eligible before the 14th Amendment, the 14th Amendment could not have conferred such eligibility upon him.

    Furthermore, in Wong Kim Ark, Justice Gray quoted Binney’s paper on at 169 US 649, 665:

    “‘The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’”

    Two children are discussed and compared.

    The principle discussed is “born in the country”.

    Child 1 is the child of an alien

    Child 2 is the child of a citizen

    The passage indicates that the child of the alien, by operation of the principle (born in the country), is “as much a citizen as the natural-born child of a citizen”.

    The child of the citizen is natural-born, and the child of the alien is not… but both are equal citizens.

    And this passage, in my opinion, was used by Gray to quiet the dissent’s fears that Wong Kim Ark could become President. The passage acknowledges that the child of an alien is not natural-born. Gray not only cites this on pg. 665, he cites the EXACT same passage in the final holding of the case on pg. 693:

    “The foregoing considerations and authorities irresistibly lead us to these conclusions…Every citizen or subject of another country…if he hath issue here…his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ ”

    The dissent’s fears that Wong Kim Ark would be eligible to be President are mis-placed in light of this passage. And the dissent is certainly not the law.


  43. De-orbitered.

    gorefan:

    So even if the Minor court held that Minor was a citizen, it did not need to decide if she was natural born and the single sentence about the definition of natural born “can be sloughed off without damaging the analytical structure of the opinion”.

    I agree.


  44. Leo,

    What part of holdings are the arguments materially relevant to the issue at bar don’t you understand? Aside from all of it. Judges can say all manner of things in a holding that aren’t relevant to the case at bar. I know relevance is hard to deal with for someone like you, but the bottom line is Obama is a natural born citizen with a valid birth certificate in the State of Hawaii. On April 27, 2011, the White House released a copy of his long form birth certificate. It is in the proper form, stamped and signed by Alvin T. Onaka (Hawaii state registrar). It is admissible as evidence of citizenship in any court in the land. His mother was a citizen so he’s a citizen jus sanguinus and the highest quality of state documentation as evidence shows he is a citizen jus soli. It don’t get more natural born.

    So either his birth certificate is a forgery, none of the birth certificates issued by the State of Hawaii are valid or you’re simply full of crap.

    I’m thinking the later, Leo.

    I didn’t make a comment to engage you in a discussion. I made a comment to compliment gorefan on a job well done. Believe it or not, not every comment is about you and your “scholarly” endeavor. However, you are quite well known to me. “If you cannot acknowledge that Minor is historically famous for being a citizenship holding, then I see no point in discussing the issue any further with you.” Great! Because I’m not interested in arguing with someone who can’t tell dicta from decision or recognize valid state documentation that’s admissible evidence when it is inconvenient to their political agenda.

    I’m no fan of Obama, but my criticism is restrained to legitimate matters of his abuse of office and failure to follow the rule of law, not some dog-whistle nonsense to play to simple racists based upon facile analysis of dicta.

    But you are right about one thing. You really don’t want to engage me in conversation. I don’t suffer fools gladly. So next time I decide to compliment someone else, instead of speaking to me, you talk to someone who takes you seriously instead.


  45. on 1, November 15, 2011 at 12:08 am naturalborncitizen

    Gen H,

    Peace be with you.

    Leo


  46. on 1, November 15, 2011 at 12:11 am naturalborncitizen

    Nal,

    Please read the following and explain what precedent the Court in Lockwood was making reference to when they cited Minor…

    ““In Minor v. Happersett, 21 Wall. 162, this court held 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;” …

    Leo


  47. Leo:

    The Court further stated that there was never any doubt as to “citizenship” [of those born of citizen parents in the US] .

    Therefore, it doesn’t matter whether they’re called “natural born citizens” or not, when determining their citizenship. The determination of citizenship is critical in Minor, not what constitutes “natural born citizen.”


  48. on 1, November 15, 2011 at 12:25 am naturalborncitizen

    Justia sloughed off parts of 25 cases which cite MInor, but that’s not gonna work in the long run.

    The Court in Minor construed A2 S1 as authority for avoiding the 14th Amendment. Minor’s construction of A2 S1 was an independent ground for avoiding the 14th Amendment.

    The Court in Minor justified their avoidance of the 14th Amendment by construing A2 S1. Therefore, they quoted from it and defined the term, “natural-born citizen”. This was an independent ground in their reasoning for finding Minor to be a citizen with no regard for the 14th Amendment which the Court stated did NOT apply to her. But it did apply to WKA, and it did not create any new privileges for him or anyone else.

    In Ogilvie, Et Al., Minors v. US, 519 US 79 (1996), the Supreme Court stated:

    “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.”


  49. Leo,

    That those born of citizen parents within the jurisdiction of the United States are citizens of the United States.


  50. on 1, November 15, 2011 at 12:44 am naturalborncitizen

    Nal said:

    “The determination of citizenship is critical in Minor, not what constitutes ‘natural born citizen.’ ”

    OK, we reach common ground that MInor is a citizenship precedent. Thank you. Fair play.

    I also agree that determining “citizenship” was critical. She wasn’t running for President, so, in that sense, her eligibility to be POTUS was not a direct issue.

    But that does not mean that when they did invoke it, it is only dicta.

    If the Court could have determined she was a citizen – without regard to the 14th Amendment – and without defining who was nbc, perhaps they would have avoided that as well… but by placing Minor in that class of persons referred to by A2 S1, which they cited directly, the Court identified the Constitutional provision which made her a federal citizen prior to the 14th Amendment.

    The Court looked into the Constitution and construed A2 S1, defined the class who fit into that, and placed her in that class. The Court also noted that the 14th Amendment might have created more citizens, but that it did not give any of them new privileges. Therefore, if WKA was not POTUS eligible prior to the 14th Amendment, it did not make him eligible after it.

    In Ogilvie, Et Al., Minors v. US, 519 US 79 (1996), the Supreme Court stated:

    “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 Minor Court’s construction of A2 S1 and subsequent identification of the natural-born citizen class (those born in the country to parents who are citizens) was an independent ground for their determination that she was a citizen with no regard to the 14th Amendment.

    If the Court in WKA felt that he was also in that class, they too would have avoided the 14th Amendment. But they didn’t.

    Leo


  51. GeneH,
    I am not a lawyer, but I am bright enough to know that the long form COLB that was proffered on April 27, 2011 is an absolute forgery. And posting it on the whitehouse.gov website proved nothing but whomever forged it also left telltale signs that were intended to out the usurper. It is most unfortunate that things have degraded so terribly in this country, that no one in the government or in the media is willing to ask for some forensic examination of this document. Never mind the fact that no one has come forward to defend the authenticity of this blatant forgery, legions of experts have ripped it to shreds.

    In due course, we shall see who is full of crap.

    I am guessing you will be found in that camp.


  52. Leo,

    I slighted you because I believe that you don’t engage in good faith. This is based on your past history–most recently you posted this comment on your blog:

    http://naturalborncitizen.wordpress.com/2011/11/02/4217/#comment-19671

    Now, it’s your blog and you get to do what you want on it, but if you make a big deal about only posting dissenting comments and then just post comments from sycophants it doesn’t look good…

    I looked at your response and it seemed to me that you failed to refute my point, but instead of going around and around with you about the law (which I admittedly know little about), let’s talk about something I do know quite a bit about: regex. You say that Justia screwed up the citations to Minor which (presumably) caused you to miss the reference in your on-line research. Now, Justia published the line of regex in both its original and corrected form. Both lines of code do exactly what Justia says they do–one removes only spaces up until the next pipe and the other removes all characters. Now, having written thousands of lines of regex and countless lines of code in general, I can tell you that this sounds perfectly reasonable. This sort of bug happens and I wouldn’t expect a free site like Justia to have the best quality control. On the other hand, your theory is incredible and lacks any evidence. Evidence, in this case, would be a citation which should have been mangled by the regex that was correct when the bad line of code was running. So either you didn’t think about this (which speaks to the credibility of your allegations–if you didn’t then your opinion of Justia’s explanation isn’t really worth anything, is it?) or you couldn’t find this “smoking gun”. Either way, I don’t think your allegations are anything but frivolous (especially if you are wrong and every other lawyer is right about Minor) and I think that you are aware of this and it is one of the reasons that you wont even try to take this to court. In any case, I don’t bear you any ill will either (unless I see you across a poker table in which case I’ll be aiming to take you down hard–and you wont know who I am… ;-)) so peace to you to.

    Kevin Kesseler (since you were signing with your real name…)

    p.s. I think the whole “Paraclete” thing is pretty funny–you must have been smoking some pretty good shit…

    Ray,

    Clearly you aren’t very bright. John Woodman (a conservative who greatly dislikes President Obama) looked at every so-called “expert” claim of forgery and determined that there was absolutely no credible evidence of forgery whatsoever. Combined with the fact that there would be no reason to make a forgery (as the Hawai’i DoH would necessarily have to have been in on it and they could produce the document–as they said they did–by any means they chose and it would still be perfectly valid [what makes it valid is that the state of Hawai'i stands behind it]). What would making a forgery have accomplished? At what point in the chain of custody (which is impeccable) was the forgery supposedly introduced? Why is the Hawai’i DoH playing along? (under two administrations, no less…). Face it, you’re just someone who hates President Obama based on nothing but the propaganda you’ve been fed who has neither the intelligence nor the integrity to check out both sides critically. Why do you waste people’s time like that?


  53. “Never mind the fact that no one has come forward to defend the authenticity of this blatant forgery.”

    Other than the State of Hawaii, of course — the governmental entity that issued the document.


  54. on 1, November 15, 2011 at 2:42 am Sterngard Friegen

    The legal authorities cited by gorefan are compelling, but Leo Donofrio by the force of his own argument, wins the day. This bankruptcy law expert,, who understands that it is a “fraud upon the court” when a judge cites evidence that Donofrio thinks was wrong, is a legal genius who is unappreciated. From what I understand, that lack of appreciation may soon be ordered to be $128,000 by the bankruptcy court in the Chrysler bankruptcy case.

    Yes, Leo is not only a bankruptcy court expert, but he is now branching out and creating new law with new interpretations of a voting case where both parties STIPULATED Ms. Minor was a citizen. Yes, indeed, the holding must have been about citizenship and how to qualify for it. Even though the court did not address the issue and mentioned in passing that others of Ms. Minor’s status were also citizens, and natural born, to boot.

    Bravo, Leo. Please file a lawsuit pushing this theory and sue Justia. Maybe after you do you’ll be lucky enough to top the $128,000 in sanctions that are headed your way.


  55. Come on, Stern–Leo has a compelling precedent to cite:

    “these are my rules, I make them up”

    –George Carlin re what is and is not a sport…

    How can anyone argue with that?


  56. You are holding your own Leo. Truth will prevail. The “elite” are going down….

    Remember who is FOR you – His plans cannot be thwarted. There is no Plan B in His order.

    Remember D3


  57. Leo,

    But that does not mean that when they did invoke it, it is only dicta.

    Maybe, but it lends credibility to the argument that it is dicta.

    In Minor, the citing of common law just before the “natural born citizen” remark also lends credibility to the argument that it is dicta.

    In Lockwood, the Court expressly left out the “natural born citizen” phrase as part of what they considered the holding in Minor.

    The lack of depth of research into the definition of “natural born citizen” also lends credibility to the argument that it is dicta.


  58. The entire discussion of citizenship in Minor is clearly obiter dicta. The question presented to the Court was “whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States” has the right to vote. The question did not ask if Minor was a citizen as it would have if the question of citizenship was before the court. Citizenship was conceded by defendant in the original pleadings and never raised or argued on appeal. Hence the issue was waived. The court does not need to address issues that are waived. For example, take Hamdi v. Rumsfeld, where the question presented was whether a citizen who was an enemy combatant could be detained by the Executive. The government did not argue that Hamdi was not a citizen and hence the court did not address such issue (though they were urged to by certain amicus briefs). In both Minor or Hamdi, the question of citizenship was not put before the court and hence any discussion of it is dicta.

    Even, though the question of citizenship was not put before the court, it could still be precedent if part of the ratio decidendi of the decision. In other words, was such a necessary part of the rationale used to answer the question presented. In the case of Minor it was clearly not necessary to answer the question on sufferage as the court held that no one was guaranteed a right to vote under the Constitution and hence Minor’s citizenship was irrelevant to the right to vote. Obviously, it is not necessary to determine citizenship if citizenship is irrelevant to the right to vote.


  59. “The Court further stated that there was never any doubt as to their “citizenship”. As to the second class, the Court stated they suffered doubts as to their “citizenship”. Minor’s class were undoubtedly citizens because they were natural-born citizens, the other class was not in the same class as the nbc class. The Court indicated that the second class might be “citizens”. But if that class were natural-born citizens, the Court would have put them in the nbc class. But the Court didn’t.”

    This is just making stuff up and trying to re-write what Justice Waite said. Obviously, if someone is a “natural born citizen” they are a citizen as the previous paragragh tells us there are two types of citizens under the original Constitution, natural born and naturalized. But why can’t the court be saying there is doubt about whether children of aliens are natural born citizens? Such is a perfectly reasonable reading. When speaking of children of aliens, the court does not say they are talking about a type of citizenship other than natural born. To say so is simply a lie. Though it using the term “citizen,” not “natural born citizen,” when discussing children of aliens, the court repeatedly tells us that “natural born citizens” are also “citizens” and hence calling someone a “citizen” does not mean one is not talking about “natural born citizenship.” In fact, it is pretty clear that is what type of citizen Waite is talking about. This whole paragraph is talking about the “common law” where everyone knows there are only two types of persons, the natural born and the alien born. Waite even tells us this as he only distinguishes natives and natural born subjects from aliens, not aliens and some other type of citizen.

    “These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”

    This is straight from Blackstone who states “[t]he first and most obvious division of the people is into aliens and natural-born subjects.”

    Trying to claim the court is talking about another type of citizenship simply makes no sense in this context and is reading into the decision something the court does not say. What is clear is the court expressly declined to address the citizenship status of children of aliens at common law and does not tell us what doubts and what type of citizenship they are talking about. Hence is the nature of dicta. Claiming such case is precedent for the status of children of aliens when it expressly declines to address their status at all is absurd. Of course, Wong Kim Ark spends 20 pages addressing the status of children of aliens under the common law but such case is apparently too difficult for some to understand.


  60. “If WKA had been deemed to be a natural-born citizen, as Minor was, the Court in WKA would not have reached for the 14th Amendment and would have avoided it as the Minor Court avoided it. But they couldn’t avoid it.”

    It seems someone hasn’t read Wong Kim Ark as you have the case backwards. The issue presented to the WKA court was citizenship under the 14th Amendment and, of course, the court answered the question that was presented to it on the 14th Amendment. However, the court said that the 14th Amendment was simply declaratory of pre-existing law under the original Constitution. Hence, the court spends the first 20 pages telling us WKA would be a citizen under the original Constitution since the English common law definition of “natural born subject” was incorporated into the natural born citizenship clause of the Constitution. Hence, WKA’s discussion of “natural born citizenship” was necessary to the determination of the meaning of the 14th Amendment and hence is not dicta, but part of the ratio decidendi. Do birthers minds just go blank when they read these 20 pages? The Minor court never called Minor a natural born citizen, but made clear that a person of her status was. Similarly, the WKA court never called WKA a natural born citizen but made clear that a person of his status was. One doesn’t need to call someone natural born in order to clearly define the term. And, of course, WKA followed Minor and hence would supersede anything Minor said about the status of children of aliens.

    So we have two cases that say “natural born citizen” must be defined by the common law of the founders. One doesn’t clarify what this means, the other spends 20 pages explaining what the common law meant in England and the United States. One is orbiter dictum, the other binding precedent. One cites no authority at all, the other cites pretty much every legal giant in England and the United States on the subject. One court declined to address children of aliens, the other spent the entire opinion on children of aliens. One Court followed the other and hence supersedes any implication with respect to natural born status of the former court.


  61. “Similarly, the WKA court never called WKA a natural born citizen but made clear that a person of his status was.”

    Made clear like this?

    “a person born of alien in the U.S. “is as much a citizen as the natural-born child of a citizen.”

    This is what defines who can hold the high office? ‘as much as citizen’

    heck, i am naturalized, I should hold the office too, I am as much a citizen also.


  62. mrjr101,

    You, being naturalized, are not “as much a citizen” as a natural born citizen–you are treated the same by the law in every way save eligibility for the presidency. The phrase “as much a citizen” indicates equality and your citizenship will never be equal to a natural born citizen’s (in this one regard only). Weren’t you supposed to learn this stuff when you were naturalized?


  63. Nal,

    I think a point you’re missing regarding dicta is with Lockwood citing Minor with the term “held”. It seems a stretch that the Fuller court would care a lick to cite a case regarding a fundamental aspect of citizenship if it didn’t consider it a precedent.

    NbC is immaterial to the question of whether it is dicta. And contrary to Ballantine’s opines, the matter of Miner’s citizenship was in fact pertinent as to whether the court had warrant to hear the merit of the case. Who cares what the opinion of a defendant, who waives a crucial point of order, unless it is actually rationalized by the court? Last I checked Minor’s citizenship was enclosed in the syllabus for the decision…perhaps it was important, no? Or is it the habit of the court to include dicta in the syllabus?


  64. As is typical of birthers, you present half the quote and try to read into it something it doesn’t say. Horace Binney is saying that children of aliens and children of citizens are “citizens” by operation of the same principle.

    “The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle.”

    If they are citizens by operation of the same principle, they are obviously the same typy of citizen. If you read Binney’s paper, that principle is the English common law rule of locality of birth. He says we adopted the English common law and that parentage is irrelevant. He defined “natural born subject” and “natural born citizens” as someone born “within the limits and under the jurisdiction” of the sovereign in accordance with Blackstone. Binney’s paper is just more evidence that we adopted the English common law. You have to learn that just because someone calls someone a “citizen” doesn’t mean they are saying they are not a “natural born citizen” as “natural born citizens” are also “citizens.”

    Now try going to the part of the decision where the court actually defines “natural born citizen” instead of trying to cherry pick citiations our of context.


  65. “I think a point you’re missing regarding dicta is with Lockwood citing Minor with the term “held”. It seems a stretch that the Fuller court would care a lick to cite a case regarding a fundamental aspect of citizenship if it didn’t consider it a precedent.

    NbC is immaterial to the question of whether it is dicta. And contrary to Ballantine’s opines, the matter of Miner’s citizenship was in fact pertinent as to whether the court had warrant to hear the merit of the case. Who cares what the opinion of a defendant, who waives a crucial point of order, unless it is actually rationalized by the court? Last I checked Minor’s citizenship was enclosed in the syllabus for the decision…perhaps it was important, no? Or is it the habit of the court to include dicta in the syllabus?”

    You clearly don’t know what “holding” means. It means the answer to the question presented and it is simply a fact such question was not presented to the court. Hence, it can’t be the holding no matter what some other court said. The syllabus is not written by the court and has nothing to do with what is the holding or what the court satys. The supreme court cites prevous dicta of the court all the time. Wong Kim Ark is full of citations of previous dicta.

    You don’t seem to understand how cases work and what dicta is. The court didn’t need to address whether Minor was a citizen before getting to the merits anymore than it had to determine if there was personal jurisdiction. Arguments not raised are waived. The question the court accepted to hear dealt with sufferage and its holding was that citizenship was irrelevant to sufferage. I would think even a child would understand that it did not have to determine if Minor was a citizen if citizenship was irrelevant to the holding.


  66. It is also worth noting that Justice Fuller, Gray and the litigants in Wong Kim Ark all talked about natural born citizenship and no one suggested that Minor defined who was a “natural born citizen” or was in any way precedent. In fact, both the majority and dissent point out that Minor failed to address the status of child of aliens.


  67. Well, Leo, it would seem that quite a lot of people wish to politely debate you on the facts of your assertions on a site where you can’t stifle dissent via moderation. They seem pretty erudite (more so than you, I’m sad to say…) and on point, too. Can your arguments withstand criticism on a level playing field? I don’t think so… Will you even try?


  68. on 1, November 15, 2011 at 12:44 pm naturalborncitizen

    Slartibartfast,

    Peace be with you.

    Leo


  69. “In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is…”

    Ballantine, you’re obviously learned in the dark arts, what exactly is the Fuller court doing with this citation of an earlier supreme court decision? If it is dicta, what weight does the citation have and if very little, why is used at all?


  70. Well, here is MY two cents worth. The language in Minor v. Happersett is NOT dicta. It isn’t precedental for defining natural born citizenship, because it clearly says that it is not resolving the doubts.

    But it isn’t dicta either, because some of it is quoted later in Wong Kim Ark, like this part:

    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. . .

    The Wong Kim Ark judges took this language and said:

    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.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.

    Sooo, I figure the Supreme Court judges ought to know what is dicta and what isn’t. Plus, I am not a lawyer, but my BFF Fabia Sheen, Esq., is a lawyer and she says some very academic lawyers have a different view of what is dicta stuff than trial lawyers. She says if a judge says it in his decision, the odds are it isn’t dicta, and she will quote it and see what happens.

    Squeeky Fromm
    Girl Reporter


  71. Hi Leo,

    Is that an indication that you are working on responses to all of the substantive arguments that have been made against you or an indication that you are leaving the field? I am especially curious of your response to my own argument–one, to the best of my knowledge, you’ve never addressed. The technical details in Justia-the-non-scandal-undeserving-of-the-suffix-”gate” are much more consistent with an honest coding error than a conspiracy coverup (in my opinion, which I believe is the expert one in this case…). Furthermore, you’ve avoided (by ignorance or design–neither of which lends credence to your argument) presenting evidence of conspiracy. Evidence which certainly would have been extant when you made your “discovery” and could most likely be obtained from the Wayback Machine even now if it existed. In light of this (and the powerful arguments by others against your legal position, why should anyone consider you credible on this issue? Can you get your job as the Paraclete back?

    Remember, if you can’t spot the fish in your first 30 minutes at the table…

    Kevin


  72. Squeeky, i suggest you read again both decisions…I don’t think you’re getting what the judge meant about doubts. He was referring to those of persons born to non-Americans (Minor was born to Americans). Other than that, I agree with you it is demonstratively true that Miner is not dicta due to the numerous times the citizenship holding has been cited in later cases, to include Wong Kim Ark.


  73. I didn’t cherry pick the words ‘natural born child of a citizen’ in that sentence, the judge did. It wasn’t me who made the comparison between a citizen of aliens and a natural born child of a citizen, the judge did. But anyway, I would love to know where in the holding the judge made the so “clear” conclusion that WKA is an NBC other than that sentence. I can’t find it. Please…


  74. mrjr101,

    You cherry picked the words because you ignored the phrase, “and by operation of the same principle” which immediately followed the part you quoted and which invalidates your argument. The judge, on the other hand, said all of the words…

    Squeeky,

    Wow, it’s getting to be quite the party here… I’ve seen the video of Ms. Sheen’s discussion with a birther–brilliant! You should link it here.


  75. Isn’t it fun to not have any mention of BCs or SSNs? Miner is on the books as case law and been cited numerous times. It’s worth it for lawyers and laymen, alike, to determine as to it’s actual import and value. Pushing certain matters (NbC) aside until others are resolved makes for an interesting debate.

    First, is Miner dicta or is it precedent with regard to citizenship (regardless of which class)?


  76. “In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is…”

    Ballantine, you’re obviously learned in the dark arts, what exactly is the Fuller court doing with this citation of an earlier supreme court decision? If it is dicta, what weight does the citation have and if very little, why is used at all?”

    You need to read case law more. The court cites previous dicta all the time. Dicta is still substantial authority and can be cited. Fuller cites the dicta from Slaughterhouse prominently in his WKA dissent for example.


  77. Hi Slarti!!!

    OK, here is the video, which I am linking from youtube not The Birther Think Tank, so peope won’t call me a “Blog Ho.”

    Squeeky Fromm
    Girl Reporter


  78. here…”and by operation of the same principle” WKA is a citizen the judge held. Right…what does this tell me about if WKA can be President? Still waiting for the clear link…


  79. on 1, November 15, 2011 at 1:38 pm naturalborncitizen

    Nal said:

    “In Minor, the citing of common law just before the “natural born citizen” remark also lends credibility to the argument that it is dicta.”

    I do not understand this contention. That would make it more precedent than dicta. The Court is simply discussing various sources of information. Regardless, the Court was construing the Constitution generally and the citizenship clauses specifically. It ruled out any relevance of the 14th Amendment, and instead found the power to grant citizenship within the Document in two places…

    “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 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,’ 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 Court then established Minor’s citizenship under A2 S1. The issue wasn’t who can be President, but it was who is a natural-born citizen, to which the Court stated:

    “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. ”

    It then goes about ascertaining that.

    It’s proclamations on this point are precedent under any analysis of precedent from every Supreme Court case I am familiar with which discusses precedent, particularly Ogilvie, but ESPECIALLY Wong Kim Ark (see below).

    I have yet to see a single quote from another Supreme Court case more directly on point than Ogilvie as far as this situation. I am happy to address any such quote should one be cited. I would like for you though to discuss Ogilvie.

    Nal said:

    “In Lockwood, the Court expressly left out the “natural born citizen” phrase as part of what they considered the holding in Minor.”

    I agree that the “holding” of Minor is specifically pertaining to citizenship, not nbc. The Court in Lockwood, which was deciding an issue about Bar admission, had no reason to cite the nbc part of Minor. But the Court in Wong Kim Ark did have reason to cite that specific provision as precedent. I believe that was done to alleviate the pressure of the dissent which was arguing that WKA would be POTUS eligible.

    The nbc language was not part of the specific holding, but it was an independent ground by which the Court arrived at the citizenship holding. They could have arrived at the very same holding under the 14th Amendment, but they didn’t. The Court determined Minor was nbc because that class had no doubts attached to their citizenship.

    The main question was, “Is she a citizen?” But it’s more specific than that… “Is She a Citizen before the 14th Amendment?” The Court held that she was because she was natural-born.

    Nal said:

    “The lack of depth of research into the definition of “natural born citizen” also lends credibility to the argument that it is dicta.”

    This I will acknowledge is a relevant and rational argument. But there is no rule that a point of law must have a ton of analysis attached. Look at Justice Breyer’s analysis of precedent v dicta in Ogilvie. It’s not supported by any point of law at all, but it is a precedent of that case.

    The bigger problem with your argument, however, is that in Wong Kim Ark, Justice Gray said the same thing about the Court’s statement concerning “subject to the jurisdiction thereof” in The Slaughter-House cases, that it was dicta, but in doing so, part of his proof that it was dicta included his quoting DIRECTLY the nbc passage from Minor:

    “That neither Mr. Justice Miller, nor any of the justices who took part in the decision of the Slaughter House Cases, understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign states were excluded from the operation of the first sentence of the fourteenth amendment, is manifest from a unanimous judgment of the court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: ‘Allegiance and protection are…’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, ofparents who were its citizens, became themselves, upon their birth, citizens also. These were natives or natural-born citizens…’”

    Gray specifically cites to the very passage including the nbc language. He notes that the “decision” only pertains to citizenship, but his use of the entire passage to counter dicta form TSHC indicates strongly that the passage in full = precedent.

    More important right now than the classification of Minor’s nbc definition as precedent v dicta, is national recognition of the statement, that it is controversial, that it deserves respect, if not Stare Decisis affect, and that it should be resolved by the Supreme Court. This dialogue did not take place prior to the ’08 election, but it needs to take place now, and it is taking place now.

    The 14th Amendment could have no affect on the eligibility of anyone to be POTUS since that Amendment did not add any new privileges for anyone. If one requires the 14th Amendment to be a citizen, then that person was not a citizen bf adoption of the 14th Amendment and is therefore not POTUS eligible.


  80. Ballantine, dicta is frequently cited, got it. How about the rest? “What weight does the citation have and if very little, why is it used at all?”

    I get what you’re saying regarding her waived citizenship, it just does not follow that the court could determine one without finding the standing of the other. I hope you agree that it is not merely a case involving suffrage.


  81. “I didn’t cherry pick the words ‘natural born child of a citizen’ in that sentence, the judge did. It wasn’t me who made the comparison between a citizen of aliens and a natural born child of a citizen, the judge did. But anyway, I would love to know where in the holding the judge made the so “clear” conclusion that WKA is an NBC other than that sentence. I can’t find it. Please…”

    The court didn’t say they were different. You are trying to make an inference in that since it didn’t call children of aliens “natural born” the court was implying they were not “natural born” even though it says the children of aliens and citizensa are citizens by the same principle and hence obviously the same type of citizen.

    I suggest you go to the beginning of the case where the court says “natural born citizen” must be defined by the English common law.

    “The Constitution of the United States, as originally adopted, uses the words “citizen of the United States,” and “natural-born citizen of the United States……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….The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” U.S. v. Wong Kim Ark,169 U.S. 649, 654-55 (1898).

    What can that mean? Do understand that under the English common law parentage was irrelevant? If you don’t, the court goes on with about 5 pages telling us WKA would be a natural born subject before stating the rule that would make him one “prevailed under the constitution.”

    “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. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.” U.S. v. Wong Kim Ark,169 U.S. 649, 658 (1898).

    So “natural born” is defined by the English common law and the defintion of natural born subject prevailed under the Constitution. In case anyone was still didn’t get it, Gray goes on:

    “The first section of the second article of the Constitution uses the language, ‘a natural-born citizen.’ It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth” U.S. v. Wong Kim Ark,169 U.S. 649, 662 (1898).

    “Natural born” defined by “place of birth.” Pretty clear. Gray continues:

    “All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.” U.S. v. Wong Kim Ark,169 U.S. 649, 662-63 (1898).

    “Natural born subject” defined the same as “natural born citizen.” The rule the same here as in England. The rule the same as before the revolution. Hard to be clearer. Of course, some birthers still claim that “born in the allegiance” must mean something different in England and the US. Don’t worry, Gray quotes authority defining “allegiance by birth” in the United States using the words of Blackstone:

    “allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign…” U.S. v. Wong Kim Ark,169 U.S. 649, 659 (1898).

    Finally, in case one didn’t get the message that “citizen” and “subject” meant the same thing:

    “The term “citizen,” as understood in our law, is precisely analogous to the term “subject” in the common law, and the change of phrase has entirely resulted from the change of government.”U.S. v. Wong Kim Ark,169 U.S. 649, 664 (1898).

    “And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.” U.S. v. Wong Kim Ark,169 U.S. 649, 665 (1898).


  82. Portney:

    You said: Squeeky, I suggest you read again both decisions…I don’t think you’re getting what the judge meant about doubts. He was referring to those of persons born to non-Americans (Minor was born to Americans).

    True. There were some doubts as to whether they were natural born citizens (NBC) or not. For example, there was a lot of uncertainty about the Chinese, because of some legal questions relating to them getting their heads cut off or something if they naturalized. (By the Chinese, not us Americans)

    However, in 1898 Wong Kim Ark answered all those questions, and YES!!!, if you were born here and not the kid of a diplomat or alien invader, then you were a NBC!

    Squeeky Fromm
    Girl Reporter


  83. on 1, November 15, 2011 at 1:56 pm naturalborncitizen

    If anyone wants to engage me here, address your comment to me and have it refrain from any emotionally charged language and I will be happy to partake in a mutually respectful dialogue in pursuit of genuine truth.

    I do not respond to insults, direct or implied. Address me with respect and your respect shall be returned.

    If I answer you as follows, “Peace Be With You”, I mean it and I also intend for that to be the last correspondence I have with you. I have tuned you out until such time as you may redress your disrespect.

    Leo


  84. “The main question was, “Is she a citizen?” But it’s more specific than that… “Is She a Citizen before the 14th Amendment?” The Court held that she was because she was natural-born.”

    Nope. Citizenship was never raised before the court. It wasn’t argued or briefed. The judge brought it up on his own. It is dicta. However, even if the court held Minor to be a citizen, the issue of children of aliens was not before the court and hence anything said about children of aliens is obviously dicta. Minor can simply not be cited on the issue of children of aliens.

    “Gray specifically cites to the very passage including the nbc language. He notes that the “decision” only pertains to citizenship, but his use of the entire passage to counter dicta form TSHC indicates strongly that the passage in full = precedent.”

    Gibberish. The sole purpose of the citation was to show the Minor court was no committed to a view of on children of aliens under the 14th Amendment as the Minor court failed to address the citizenship status of them at all and, again, nothing in the Minor quote says children of aliens were some type of citizen other than “natural born.” Such is just making stuff up.

    “The 14th Amendment could have no affect on the eligibility of anyone to be POTUS since that Amendment did not add any new privileges for anyone. If one requires the 14th Amendment to be a citizen, then that person was not a citizen bf adoption of the 14th Amendment and is therefore not POTUS eligible.”

    Time to read Wong Kim ark again. The court said the 14th Amendment and the NBC clause are both defined by the English common law and hence mean the same thing. No subsequent court has ever said they mean something different.

    The fact is that no one in history has cited Minor as precedent for definition “natural born citizen” because it is not. At most it stand for children of citizens being natural born and leaving the question open whether children of aliens are.


  85. Natural Born Citizen:

    There is no sense in me engaging you here, because I have just been giving you HECK at my website. Sooo, if disrespect bothers you, OH I would just be giving you tizzies. Plus, I am scairt of that “Stream” of yours. Because I am pretty sure it isn’t “rain.”

    That being said, you are living in an alternate reality universe wherein all the history after the 1875 Minor v. Happersett case do NOT recognize it as precedent for determining natural born citizenship. Even Breckinridge Long snubbed the case in 1916 in his hit piece on Charles Evans Hughes, who was seeking the Presidency against Woodrow Wilson.

    If ever a writer could have used Minor v. Happersett to prove his case, it was poor Brecky. Yet, no mention of the case. Anomalies like this are the responsibility of the person advancing the theory to explain. Should you need a list of anomalies to start you off, try this:

    http://birtherthinktank.wordpress.com/2011/11/12/the-alternate-reality-universe-of-leo-donofrio-a-white-paper/

    The “Et tu, Breckinridge???” Internet Article is the one after that.

    Squeeky Fromm
    Girl Reporter


  86. on 1, November 15, 2011 at 2:20 pm naturalborncitizen

    Ballantine,

    Peace be with you.

    Leo


  87. on 1, November 15, 2011 at 2:21 pm naturalborncitizen

    Squeeky,

    Peace be with you.

    Leo


  88. “Ballantine,

    Peace be with you.

    Leo”

    Translation: “I have no answers to your arguments.”


  89. Bless your heart.


  90. Leo,

    I didn’t think that my last comment was emotionally charged, but since you apparently did, here’s the gist of my comment:

    Why didn’t you show evidence of your allegations against Justia? (i.e. a non-mangled link in citations that the defective regex was allegedly used on)

    Also,

    Since the “coding error” explanation much simpler than the “conspiracy to cover up Minor” explanation, is it not much more likely to be true? Especially if you are wrong (as it appears) regarding Minor and precedent…


  91. Ballantine:

    A better translation:

    “But, I don’t want to take off my big red rubber nose and floppy shoes first. Can’t you just respect me and my seltzer bottle the way I am???”

    I think he should put a “Non ridet” clause into his stuff. Although it will probably not be enforceable for “impossibility.”

    Tee Hee! Tee Hee!

    Squeeky Fromm
    Girl Reporter


  92. @ Natural Born Citizen:

    Why does no one in the mainstream legal community agree with your take on what Minor held?


  93. on 1, November 15, 2011 at 3:12 pm naturalborncitizen

    bob,

    The entire basis of our system of jurisprudence is based upon people NOT agreeing with each other. Every case in every law book is based upon dissonance.

    Until the emergence of Lockwood from the shadows, people argued that Minor was not a citizenship precedent. Now since Lockwood went mainstream, there’s no doubt in the “mainstream legal community”, including the Supreme Court Justices who have cited it, that it is a citizenship precedent. Non-lawyers arguing on forums who have an agenda are hell bent on denying the truth of the case. But there’s no genuine debate that Lockwood cites Minor as precedent on citizenship.

    The only question which is open for debate as to Minor concerns what is the precedent of citizenship from that case. We know the holding, but the precedent is not limited to the holding.

    Leo


  94. Professor R. D. Skidmore of Pierce College in California agrees with Leo.

    http://www2.hernandotoday.com/news/hernando-news/2011/nov/05/a-birther-recants-ar-301384/

    Attorney Mario Apuzzo agrees with Leo.

    http://puzo1.blogspot.com/2011/10/how-obamas-enablers-mislead-public-on.html


  95. It’s hard to believe that the birther controversy has re-emerged. I have read the entire opinion in Minor v. Happersett. Nal is absolutely correct. The reference to natural-born citizens in the opinion is dicta in its purest form. That is to say, the comment had no bearing on the determination of the issue before the court. I have also read Ms. Cotter’s piece in its entirety. Unfortunately, earnestness is not a cure for ignorance. She ought to have consulted a lawyer before she spent what appears to have been a considerable amount of time uselessly.

    BTW, Nal, great comment and explanation.


  96. “Professor R. D. Skidmore of Pierce College in California agrees with Leo.

    http://www2.hernandotoday.com/news/hernando-news/2011/nov/05/a-birther-recants-ar-301384/

    Attorney Mario Apuzzo agrees with Leo.
    http://puzo1.blogspot.com/2011/10/how-obamas-enablers-mislead-public-on.html

    Uh, Skidmore is not a lawyer and Apuzzo has embarrassed himself every time he has debated the issue in a public forum. And what are Apuzzo’s qualifications as a constitutional scholar? Why not try citing real scholars like Tribe or Olson who say Donofrio is wrong. Try citing real judges like the judges in the Ankeny court or actual legal treatises or dictionaries which all say Donofrio is wrong.


  97. The 1894 Lockwood case cite of MvH:

    In Minor v. Happersett, 21 Wall. 162, this court held 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.

    Sooo, this means it takes two citizen parents to be president??? Funny how the Wong Kim Ark Court did NOT think so four years later. Maybe the MvH case was scrubbed??? This is the usual Vattle Birther trick. Make a broad statement and leave out all the context and troubling little details.

    Squeeky Fromm
    Girl Reporter


  98. Philo-Publius,

    Maybe you don’t recall, but the Founding Fathers fought a war so that they didn’t have to follow British law–why do you and Professor Skidmore want to cede US sovereignty by letting every other country in the world decide who can and can’t be president? Besides, we’ve already had French and Greek citizens as President and Vice-President (respectively) and, if I am not mistaken, President Obama never actually had British citizenship.. he was just legally entitled to it if he elected to obtain it–which he never did (and at or around the age of majority this option expired). Why is President Obama different from his dual-nationality predecessors? (Aside from having a better claim to eligibility?)


  99. “Until the emergence of Lockwood from the shadows, people argued that Minor was not a citizenship precedent. Now since Lockwood went mainstream, there’s no doubt in the “mainstream legal community”, including the Supreme Court Justices who have cited it, that it is a citizenship precedent. Non-lawyers arguing on forums who have an agenda are hell bent on denying the truth of the case. But there’s no genuine debate that Lockwood cites Minor as precedent on citizenship.”

    Fuller citing Minor doesn’t change dicta to the holding. Unless the question of Minor’s citizenship was put before the court, the discussion of citizenship is not the holding. Really no argument on this point. In addition, Ex Parte Lockwood did not cite Minor on whether Lockwood was a citizen, an issue not before such court, but on whether suffrage was a privileges and immunity, the argument Lockwood was making before the court. And Fuller’s description of the holding does include the actual holding which was, in Fuller’s words:

    “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 citizens of the United States was no violation of the federal constitution.”

    It is not clear from Fuller’s citiation whether he thought citizenship was part of the holding, but law school 101 analysis makes clear it was not. Of course, nothing in Fuller’s citation asserts or recognizes that children of aliens were not citizens or natural born citizens as nothing in the Minor court says that.

    I really don’t understand the argument that speaking of just “citizens” when referring to children of aliens means they were not referring to “natural born citizenship” when the Court only calls Virginia Minor a “citizen,” not a “natural born citizen,” and repeatedly makes clear that “natural born citizen” is a type of citizen. Can birtherdom really not understand the Minor court’s explanation that there were 2 types of citizens under the original Constitution. Natural born and naturalized. And saying it is unclear whether someone was a “citizen” meant it was unclear whether they were a “natural born” or naturalized citizen. It in no way means they are not “natural born citizens.” Accordingly, to claim Minor says that children of aliens cannot be natural born is simply being dishonest. It never specifies what type of citizenship it is talking about though, as I explain above, the context makes clear it is natural born citizenship. Such is the problem of citing dicta that doesn’t cite authority or detail the doubts it is mentioning.


  100. “Maybe you don’t recall, but the Founding Fathers fought a war so that they didn’t have to follow British law–why do you and Professor Skidmore want to cede US sovereignty by letting every other country in the world decide who can and can’t be president? Besides, we’ve already had French and Greek citizens as President and Vice-President (respectively) and, if I am not mistaken, President Obama never actually had British citizenship.. he was just legally entitled to it if he elected to obtain it–which he never did (and at or around the age of majority this option expired). Why is President Obama different from his dual-nationality predecessors? (Aside from having a better claim to eligibility?)”

    Skidmore does not understand the issue. Perhaps he should go to law school England did not consider persons made subjects under the British Nationality Act of 1772 to owe allegiance to England or to be British subjects unless they moved back to England. Such statute merely conferred municipal rights to such persons when in England and did not confer rights that could not be claimed against their native country. From the Royal Commission on Natualization and Allegiance:

    “no attempt has ever been made on the part of the British Government, (unless in Eastern countries where special jurisdiction is conceded by treaty) to enforce claims upon, or to assert rights in respect of, persons born abroad, as against the country of their birth whilst they were resident therein, and when by its law they were invested with its nationality.”

    If England didn’t think children of British subjects born in the United States were to be treated as British subject while in America, why would anyone think the United States would? Indeed, there is no early authority at all that claims that dual citizenship or allegiance was relevant to American citizenship. Rather, our executive branch declared that we did not recognized foreign claims of allegiance on our native or naturalized citizens. In fact, in 1868, a report to Congress stated that a majority of our native born and naturalized citizens owed a foreign allegiance under the laws of Europe. Congress reacted by proclaiming that our native born and naturalized citizens only owed allegiance to us and that we would protect our citizens against all such foreign claims. The notion that we let foreign nations determine who are our citizens is absurd and has no basis in history. Foreign nations could make all Americans citizens if they wanted. To claim such is relevant to our municipal law is just silly.


  101. Leo,

    Non-lawyers arguing on forums who have an agenda are hell bent on denying the truth of the case.

    Peace be with you.

    Nal


  102. The Minor “precedent” on the Citizenship “class” which they found Minor to belong based on their determination of the circumstances requisite to be in conformity to the needs of A2S1C5 notwithstanding;

    “There is NO acknowledged “legal” definition of the Constitutional idiom of natural born Citizen which is “enforceable” independent of adjudication within a Court of Competent Jurisdiction;

    a circumstance upon which the Courts REFUSE to accept Jurisdiction or acknowledge standing since there has been no promulgated laws by the Congress to address the issue, therefore the ONLY means to seek the “legal” Constitutional definition in order to have an uniformly acknowledged “legal” definition is to challenge the status of a POTUS / V-POTUS or candidate for the Offices under the various State Election Laws.

    Nevertheless, the question of the definition of the Constitutional idiom is in the 1st instant a Citizenship Question, with the transient Political aspects being of incidental import to the National Security interests which prompted the usage of the turn of words within the Clause.

    In the totality of the Clauses Statutory Construction it is found to be an “exclusionary provision” constructed as a “Prerequisite imperative requirement” with no apparent discretionary language that would suggest that a “person” that was not could be made one by the office.

    Those who would suggest that “native born citizen” is wholly synonymous with “natural born Citizen” are those who are unaware of the FACT that the Federal Guv’mnt, at this time, refuses to “certify and/or acknowledge’ that ANY ONE is a “natural born Citizen”, preferring the turn of words of “native born U.S. Citizen”, (of which I have been acknowledged as being).

    That circumstance proves the the Federal Guv’mnt refuses to acknowledge the apparent and obvious distinction made in the Constitution between “Citizen” and “natural born Citizen” and the lack of intellectual curiosity exerted by many who fail to thoroughly research the history of U.S. Citizenship under the Rule of Constitutional Law.

    In conclusion and with full disclosure, I too considered the Minor v. definition as “dicta”, but have been persuaded that it stands as unenforceable “precedent” on the question of the ONLY form of Constitutional Citizenship surviving the Founding Generation and not a function of naturalization Acts.

    The proof of that fact can be demonstrated by the fact that the ONLY persons NOW benefiting from the 14th Amendment Declaratory Collective Naturalization Born provision are those persons born to alien foreign nationals within the Jurisdiction, whether present legally or not.

    In other words, the 1st Congress’ “Act to make an uniform Rule on naturalization” established Jus Sanguinis as the “uniform Rule” that would inform them as to the grant of Citizenship to Citizen parents” traveling anywhere in the world. All others seeking citizenship were/are required to conform to a multitude of Rules and Regulations with the prospect of ‘expatriation for cause’ ever present.

    The “Repeal” and then rewording of the 1795 Act establishes that Jus Soli is a circumstance requisite along with Jus Sanguinis in the determination of a who is or is not a natural born U.S. Citizen (sic).


  103. Oh ya, to all of those who think they understand the Minor case please go back and read the Minor assertion within the briefs that she was a citizen by virtue of the 14th Amendment and because of that she should have the Right of Suffrage.

    The FACT is, there was doubts whether “women” were citizens independently of a “husband” prior to the 14th.

    A “woman’s” rights were greatly curtailed in “ancient times” to the extent that when a woman married a “Foreigner” her ‘citizenship’ was assumed as being that of her husbands.

    Not trying to “change” minds, I’m fully aware there is little “hope” of that, just like the record to be accurate.


  104. What is with the “idiom” nonsense? Do you really think anyone understands you?

    “Those who would suggest that “native born citizen” is wholly synonymous with “natural born Citizen” are those who are unaware of the FACT that the Federal Guv’mnt, at this time, refuses to “certify and/or acknowledge’ that ANY ONE is a “natural born Citizen”, preferring the turn of words of “native born U.S. Citizen”, (of which I have been acknowledged as being).”

    The Supreme Court has made clear over and over that they meant he same thing.

    “Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency.” Luria v. United States, 231 US 9, 22 (1913)

    “Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do native born citizens.” United States v. Schwimmer, 279 US 644, 649 (1929)

    “Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency” Baumgartner v. United States, 322 US 665, 673 (1944)(quoting Luria v. United States”).

    “The Constitution of the United States provides as a qualification for the offices of President and Vice-President that the person elected must be a native-born citizen.” Ex Parte Garland, 71 US 333, 395 (1866)(Justice Miller Dissenting).

    “The alien, when he becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those citizens who are native born (Luria v. United States, 231 U.S. 9, 22); but he acquires no more.” United States v. Macintosh, 283 US 605, 624 (1931).

    “Citizenship obtained through natuvalization is not a second-class citizenship. It has been said that citizenship carries with it all of the rights and prerogatives of citizenship obtained by birth in this country “save that of eligibility to the Presidency.” Knauer v. United States, 328 US 654, 658 (1946).

    “That circumstance proves the the Federal Guv’mnt refuses to acknowledge the apparent and obvious distinction made in the Constitution between “Citizen” and “natural born Citizen” and the lack of intellectual curiosity exerted by many who fail to thoroughly research the history of U.S. Citizenship under the Rule of Constitutional Law.”

    No confusion. The Minor court itself tells us that there are two types of citizens, i.e., natual born and naturalized. Not really that difficult. “Natural born” is a subset fo “citizen.”

    “The proof of that fact can be demonstrated by the fact that the ONLY persons NOW benefiting from the 14th Amendment Declaratory Collective Naturalization Born provision are those persons born to alien foreign nationals within the Jurisdiction, whether present legally or not.”

    No. Wong Kim Ark says the NBC clause and the 14th Amendment are defined by the same rule and mean the same thing. No legal authority other than the sovereign citizens nuts have ever argued the 14th Amendment confers a different type of citizenship.

    “In other words, the 1st Congress’ “Act to make an uniform Rule on naturalization” established Jus Sanguinis as the “uniform Rule” that would inform them as to the grant of Citizenship to Citizen parents” traveling anywhere in the world. All others seeking citizenship were/are required to conform to a multitude of Rules and Regulations with the prospect of ‘expatriation for cause’ ever present.”

    Completely wrong. Such Congress said they were copying English law applying to foreign born children of citizens just like Parliament did for foreign born children of British subjects. Such statute had nothing to do with persons born in the United States and just like the English statutes they were copying conferred a secondary type of citizenship that was only recognized for municipal purposes as Secretary of State Marcy would claim. Hence, just like the English, persons made citizens under such statute were only regarded as citizens when they returned to the United States while natural born citizens born on our soil were treated as our citizens no matter where they were. Have you actually done any research at all on this?


  105. “Oh ya, to all of those who think they understand the Minor case please go back and read the Minor assertion within the briefs that she was a citizen by virtue of the 14th Amendment and because of that she should have the Right of Suffrage.”

    The defendant did not even argue the case on appeal. No one asserted that Minor was not a citizen. The Missouri Supreme Court didn’t address the citizenshhip issue below because it was not raised. The Court, like it did in Slaughterhouse, decided to speak abour citizenship even though such issue was not raised before the court. The Court does this all the time but it doesn’t turn such discussion into the holding of the case. It is simply a fact that the court held that citizenship was irrelvant to the question presented to the court. One can spin all day, but such makes such discussion dicta.

    Furthermore, even if the Minor court said that children of aliens were not natural born citizens, since Minor was not a child of aliens, there was no way one can argue such statement would not be dicta as there is no way the status of aliens was before the court or relevanat to the decision. Of course, the court did not say children of aliens were not natural born citizens for those who can read English.


  106. slcraigbc,

    The “overuse” of “quotes” or their “incorrect” use as some “sort” of “indication” of “empahsis” makes your “posts” appear “juvenile”–just my “opinion”…

    I would also note that there is only one living person whom I am aware of who has judicial precedent saying that they are a natural born citizen–President Obama. The holding of the Indiana Court of Appeals in Ankeny v. Daniels is quite clear on that point…

    Ballantine,

    Thanks for the additional info!


  107. A few further points on naturalizing children of our citizens born oversees and how such were treated only as citizens for municipal purposes and not treated as natural born citizens.

    “The 4th section of the act of April 14, 1802 (Rev. Stat., § 2172) (making children of naturalized persons citizens, and extending citizenship to children born abroad to citizens), “is only a municipal law, and can have no effect beyond the jurisdiction of this country, and especially in Holland, if it should be in conflict with the local law of that country. If, therefore, Johannes (whose citizenship was contested) voluntarily placed himself within Dutch jurisdiction, his rights and his obligations must be measured by the laws of Holland and not by the laws of the United States.” Mr. Marcy, Sec. of State, to Mr. Wendell, Sept. 7,1854. MSS. Doni. Let.

    “If, therefore, by the laws of the country of their birth, children of American citizens born in that country are subjects of its government, I do not think that it is competent to the United States, by any legislation, to interfere with that relation or, by undertaking to extend to them the rights of citizens of this country, to interfere with the allegiance which they may owe to the country of their birth while they continue within its territory, or to change the relation to other foreign nations which, by reason of their place of birth, may at any time exist. The rule of the common law I understand to be that a person “born in a strange country, under the obedience of a strange prince or country, is an alien” (Co.Lit. 128b), and that every person owes allegiance to the country of his birth.” Attorney General Hoar, 1869.

    This follows the law of England:

    “It is competent to any country to confer by general or special legislation the privileges of nationality upon those who are born out of its on territory; but it cannot confer such privileges upon such persons as against the country of their birth, when they voluntarily return to and reside therein. Those born in the territory of a nation are (as a general principle) liable when actually therein to the obligations incident to their status by birth. Great Britain considers and treats such persons as natural-born subjects, and cannot therefore deny the right of other nations to do the same. But Great Britain cannot permit the nationality of the children of foreign parents born within her territory to be questioned.” Royal Commission on Naturalization and Allegiance, pp. viii, 67 (1869)

    Hence, in both England and the United States, jus sanguinis for the foreign born was a secondary citizenship that only applied for municipal purposes but could not confer such privileges against the nation of their birth. Hence, while England protested the drafting of unnaturalized British born subjects during the civil war, they told children of British subjects, born in the United States, that they were American citizens, that they owed allegiance to the United States and that they would only be treated as British subjects if they returned to England.


  108. I think Natural Born Citizen was referring to me when he used the words:

    “Non-lawyers arguing on forums who have an agenda are hell bent on denying the truth of the case.”

    Which canard, if it was true, would be worthy of discussion and condemnation of the guilty party. But the non-lawyer could at least plead ignorance as an excuse, or defense. Would that defense be available for a:

    lawyer arguing on forums who has an agenda and is hell bent on denying the truth of the case.

    Respectfully submitted,

    Squeeky Fromm
    Girl Reporter
    pro se


  109. “I think Natural Born Citizen was referring to me when he used the words:

    “Non-lawyers arguing on forums who have an agenda are hell bent on denying the truth of the case.”

    Looks to me like Squeeky is doing just fine against the Vattellites who have some kind of law degree. This really isn’t rocket science.


  110. naturalborncitizen wrote:

    “The entire basis of our system of jurisprudence is based upon people NOT agreeing with each other. Every case in every law book is based upon dissonance.”

    It is true that all cases begin with disagreement. That does not imply there is any disagreement in how they were resolved, or why.

    Ernesto Miranda and the State of Arizona, for example, disagreed whether the state’s interrogation of Miranda violated the U.S. Constitution. SCOTUS was closely divided on how to resolve this case. But there is no disagreement in the mainstream legal community about how SCOTUS did, in fact, resolve the case, and its rationale for doing so.

    So, again: Why does mainstream legal community reject your perspective on the rationale employed by the Minor court to resolve the dispute between Minor and the Missouri’s registrar?


  111. slcraignbc:

    I have read your posts several times and must confess that I have no idea what you’re talking about.


  112. Mike A:

    As a veteran Vattle Birther fighter, let me try to translate what slcraignbc was trying to convey into English. He is referring to several early Naturalization Acts where the language basically said that children of naturalized foreigners would also become citizens. The laws did not specifically say it was referring only to those who were born overseas. The implication was made that these acts controlled citizenship of ALL children of foreigners, not the common law natural born citizen concept.

    This claim was first made way back in 1844 in Lynch v. Clarke. That judge was not persuaded, but the two citizen-parent Birthers have a hard time taking “NO!” for an answer, even after 167 years:

    The provisions of the naturalization laws enacted by Congress, are urged as decisive, that children born here of alien parents were not citizens. The act of 1802, § 4, declares that the children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the government of the United States, may have become citizens of any one of the states, under the laws thereof, being under the age of twenty-one years at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States. (2 Story’s Laws of U. S. 852, 3.) A similar provision was enacted in the acts of 1790 and 1795. And the second section of the Act of 1804, provided that when any alien who had declared his intention, &c., should die before he was actually naturalized, his widow and children should be considered as citizens, and entitled to all the rights and privileges as such, upon taking the oaths prescribed by law. (2 ib. 943.) This section was repealed in 1828, (ch. 106.)—The acts make no distinction between children born here, and those born abroad, and it is said, this shows that none existed. That if, in fact, there had been any difference, the statutes would have provided only for the latter class.

    The general words used, do not prove that general words were necessary. The statutes were necessary, and every part of them is fulfilled, although children born here were already citizens. They operate on the much larger class of the children of aliens, viz : those who were born abroad. With a law which admits aliens to naturalization after five years residence, the children that are born to them in the five years, will usually bear but a small proportion, to the number who come with their parents from abroad. It was just as necessary in the act of 1804, to have ditinguished between widows who were already citizens, and those who came here with their alien husbands. For a great many adult aliens come here single men, and marry citizens. Probably as great a proportion of the widows who are provided for in the general words of the Act of 1804, are native citizens, as the proportion of the whole number of children embraced by both acts, who are born here; yet no distinction respecting widows who are citizens, is made in the Act of 1804. And on this omission, the same argument urged relative to the children, will prove that all the widows of aliens must of necessity be aliens.

    Upon the whole, the implication claimed from these statutes is not a necessary one, and cannot be raised to overturn an established legal principle.

    http://nativeborncitizen.wordpress.com/2009/11/09/lynch-v-clarke-ruling/#more-7118

    This same issue was discussed again in Wong Kim Ark 1898, with the holding that naturalization statutes do not trump natural born citizenship. I hope this helps.

    Squeeky Fromm
    Girl Reporter


  113. “slcraignb
    I have read your posts several times and must confess that I have no idea what you’re talking about.”

    LOL. You should read the silly complaint he has filed based upon this nonsense. I gave up trying to understand his argument about 3 pages in as it made no sense.


  114. Leo,

    In citing Wong Kim Ark, you point to the statement by Binney, “The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’”

    But in fact, Justice Gray cites this passage twice. The second time he writes:

    “His [foreigner] allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ ”

    So he starts the sentence saying that a foreigner has a direct and immediate allegiance to the United States and that allegiance is so strong that it makes a child born to the alien “natural born”. And such a child is as much a citizen as the “natural-born child of a citizen”.

    Why is he quoting the Calvin’s Case? Isn’t that the basis for the English Common Law principle of jus soli?


  115. The problem with those that consider the citizenship decision of MvH as dicta is that it appears an argument of convenience, if not expedience, If it is dicta than it can be summarily dismissed regardless of its later use. Perhaps if it were admitted that it was a common citation in later cases regarding citizenship then the argument could move forward.


  116. Portney

    “Perhaps if it were admitted that it was a common citation in later cases regarding citizenship then the argument could move forward.”

    Cite some of those cases.


  117. Portney,

    Since the court in Minor refused to say anything about the children of aliens born in the US, the question of dicta v. holding is irrelevant to President Obama’s citizenship.


  118. It seems like Squeeky, Ballantine, and gorefan are not unknown to each other.

    Welcome. Hope you all stay around for some of the non-birther topics, such as the stereo melodies.


  119. Nal:

    Thank you!!! Yes, this is a nice website. I have browsed some of the other threads.

    Squeeky Fromm
    Girl Reporter


  120. The lack of intellectual honesty and zealous advocacy that argues against not only the accurate and historic natural law definition of the Constitutional idiom that was advanced as a National Security measure is disheartening, but the inability to accept the linguistic fact the the “turn of words” was made an “idiom” by its “specific usage for specific purpose” of being an
    “exclusionary provision” within the POTUS qualification Clause makes it difficult to accept that the “defenses” of your contrary positions are made in the best interest of the support, protection and defense of the Constitution.

    The arguments seem to accept every kernel of “enlargement, abridgement and modification” to the nature of the idiom without the imprimatur of an AMENDMENT.

    On the one hand it is advanced that Jus Soli was always the case and on the other it took the 14th to establish jus soli to be “legal” in the Constitutional sense.

    But to put an even finer point on the absurdities advanced it is expressed with the “English Common Law” being cited when in fact it is English Statutory Law that is used by Blackstone when plucking from the Queen Anne Statutes that codified the Divine Right of Kings prerogative to say who would be its subjects.

    What then of the Supremacy Clause of the Constitution and the predecessor Articles of Confederation that retained only the “structure and prerogative writs’ of the English common law and rejecting those things that were “repugnant” to a sovereign State.

    But I have to ask how, by walling off of the truth with inaccurate and deceptive readings of case law and history are any of you 0′pologists able to reconcile the “exclusionary provision of the prerequisite imperative requirement” expressed in A2S1C5 let alone the Minor v opinion, whether considered precedent OR dicta, (which, being cited in numerous cases since its publication is at the minimum, “dicta redux.

    It is indisputable that the 1790 Act to make an uniform Rule on naturalization “established” jus sanguinis as the “guiding principle” for determining a persons citizenship status as the 1st principle, i.e., “birth-right”, followed, of course, by promulgated laws to allow those who had no jus sanguinis upon which to rely.

    Any judicial act that extended the benefit of citizenship based on solely jus soli prior to the adoption of the Constitution and the act of the 1st Congress is moot and any such occasion after adoption and before the 14th must be looked at with scrutiny of the status of the parents and if of an un-naturalized alien father must be considered as an act of judicial naturalization in controvention to the laws of the Congress.

    In the matter of WKA it is more rightly to be considered a judicial kidnapping, given the the Burlingame Treaty’s Article VI was controlling of the Ark’s prodigy. For those that say the 14th Amendment trumps a Treaty need to refer to the Constitution before advancing that argument, lest diplomatic immunities fall into question.

    But one last eye opener for all you legal eagles to debate and that is to explain that the only surviving function of the “declaratory born provision” of the 14th is to provide the citizenship benefit to persons born to alien foreign nationals when within the “territorial jurisdiction”, whether present legally or otherwise, since the “statutory benefit” is available, jus sanguinis, to a person born to a citizen parent, whether within the “territorial jurisdiction” or not.

    “Tweak”.


  121. “No. Wong Kim Ark says the NBC clause and the 14th Amendment are defined by the same rule and mean the same thing.”

    Since this is the defining dictum thread, will you please post the non-dicta citations from WKA that are specific to your assertion?

    Nal, will you please verify if indeed the citations are not dicta, and form an actual holding, that perfects the synonymy of the term “natural-born citizen” and the term “citizen”?

    Thanks in advance.


  122. To Komfort and Craignbc:

    Do you need a link to Wong Kim Ark??? Plus, this same thing is in Ankeny v. Governor in case you never read that one either.

    From Section V, Wong Kim Ark:

    The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”

    Squeeky Fromm
    Girl Reporter


  123. So combative. No wonder you picked the name of an attempted murderer of an American Presidents.

    If that is your non-dicta citation, I think the author of this thread should weigh in for validation.

    Thanks again.


  124. @ Komfort:

    If the author (Nal) does confirm that is the ratio decidendi of Wong Kim Ark, then would you agree that President Obama is a natural-born citizen?


  125. …President.


  126. I never said he wasn’t.


  127. “But to put an even finer point on the absurdities advanced it is expressed with the “English Common Law” being cited when in fact it is English Statutory Law that is used by Blackstone when plucking from the Queen Anne Statutes that codified the Divine Right of Kings prerogative to say who would be its subjects.”

    Seriously, I have not seen anyone say something more stupid than this on English law. Slcraignbc is not a lawyer and has no understanding that Blackstone stated that English statutes were solely an exception to the general common law jus soli rule. In fact, no one in English history thought such statutes were anything other than an excpetion from the jus soli common law rule. Funny that non-lawyer birthers who have never studied English nationality law claim they are experts. Funny that Squeeky is able to run circles around these birther experts who have never actually read what English law was in 1787. No real legal authroity would ever dispute that parentage was irrelvant to “natural born” status under the common law.


  128. Ballantine:

    Thank you!!! It is really not hard if you just read the 2 or 3 cases. Then if you do a little research in addition to that, there is no excuse for somebody being a Vattle Birther. Plus, if you just read the arguments on the Internet between Vattle Birthers and the anti-VB’s, you watch the VBs getting smeared time after time to where you almost feel sorry for them being that ignorant of stuff. Then they go and say something mean to you, so then you start to enjoying watching them getting their brains beat out WITH LOGIC.

    Am I cruel???

    Squeeky Fromm
    Girl Reporter


  129. Komfort;

    Squeky, like Justice Gray, is lost in a world of their own making. What “Ancient law of Jus soli” making of citizens…? Subjects, yes, but “citizens”.

    I suppose the FACT that the Constitution adopted by CONSENT is lost on many and that the consent of a minor is only TACIT until continuing as a Citizen after the age of majority.

    There was NO jus soli for those not born of Citizens prior to the 14th and the 14th ONLY provided Collective naturalization to those persons who were previously denied Citizenship. Once Citizens, those persons prodigy were made Citizens via jus sanguinis.

    But facts do not matter to those that choose the contrary position to what even Aristotle understood in 350 BC.

    “Domicile” made synonymous with “within the jurisdiction”…?

    And I am ridiculed as if making a linguistic fo pa for my usage of “idiom” to describe the effect on the ‘term of words” by its usage within the Constitution for the specific National Security purpose calling for the exclusion of ALL persons except a natural born Citizen, (something unknown to the term of words prior), and Gray is lauded for the linguistic gymnastics of convoluting domicile and residency abridging the Jurisdiction of the Constitution to territorial limits on the one hand while on the other hand, apparently out of the Justices view, it operates with impunity making Citizens of US Citizens prodigy where ever in the world they may be, along with other ‘immediate family members’.

    But I suppose myopia has that effect on some.


  130. I did not know asking a dicta question on a dicta thread would require so much thought. I will check back tomorrow.


  131. slcraignbc:

    You said: “There was NO jus soli for those not born of Citizens prior to the 14th and the 14th ONLY provided Collective naturalization to those persons who were previously denied Citizenship. ”

    You are COMPLETELY mistaken. Read this case. It is from 1844:

    http://nativeborncitizen.wordpress.com/category/precedent-cases/lynch-v-clarke-1844/

    6. Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen. It is surprising that there has been no judicial decision upon this question. None was found by the counsel who argued this cause, and so far as I have been able to ascertain, it never has been expressly decided in any of the courts of the respective states, or of the United States. This circumstance itself, in regard to a point which must have occurred so often in the administration of justice, furnishes a strong inference that there has never been any doubt but that the common law rule was the law of the land. This inference is confirmed, and the position made morally certain, by such legislative, judicial and legal expositions as bear upon the question. Before referring to those, I am bound to say that the general understanding of the legal profession, and the universal impression of the public mind, so far as I have had the opportunity of knowing it, is that birth in this country, does of itself constitute citizenship. Thus when at an election, the inquiry is made whether a person offering to vote is a citizen or an alien, if he answers that he is a native of this country, it is received as conclusive that he is a citizen. No one inquires farther. No one asks whether his parents were citizens or were foreigners. It is enough that he was born here, whatever were the status of his parents. I know that common consent is sometimes only a common error, and that public opinion is not any authority on a point of law. But this is a question which is more important, and more deeply felt, in reference to political rights, than to rights of property. The universality of the public sentiment in this instance, is a part of the historical evidence of the state and progress of the law on the subject. It indicates the strength and depth of the common law principle, and confirms the position that the adoption of the Federal Constitution wrought no change in that principle.

    You are wrong. I have proven you wrong. Now, it is time for you to admit that you are wrong, and change your mind.

    Squeeky Fromm
    Girl Reporter


  132. You want someone who can’t spell “obiter” to weight in?

    OK, here goes.

    There is no holding in any Supreme Court opinion regarding what constitutes a “natural born citizen.” It’s all dicta.

    I further predict it will never be decided.


  133. Lynch is binding in a federal court? This may not be a very good lesson on dicta but it has been rewarding education on vertical stare decisis.


  134. Do you predict team WKA will go after you in the same way they go after anyone else who questions their “holding”?

    Thanks for the response, Nal.

    Goodnight.


  135. @Bob

    What do you think of all this?


  136. “There was NO jus soli for those not born of Citizens prior to the 14th and the 14th ONLY provided Collective naturalization to those persons who were previously denied Citizenship. Once Citizens, those persons prodigy were made Citizens via jus sanguinis.”

    There is not a single legal authority of signifigance prior to adoption of the 14th disputing that our law was jus soli. Why do you think making up your own history means anthing. Wong Kim Ark cites pretty much every legal giant of the early republic saying you are wrong. I guess Kent, Story, Marshall et al were all worng. Wong Kim Ark concludes:

    “Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.”

    The Supreme Court’s opinion counts. Your opinion as a non-lawyer with no understanding of the issue means nothing.

    “And I am ridiculed as if making a linguistic fo pa for my usage of “idiom” to describe the effect on the ‘term of words” by its usage within the Constitution for the specific National Security purpose calling for the exclusion of ALL persons except a natural born Citizen, (something unknown to the term of words prior), and Gray is lauded for the linguistic gymnastics of convoluting domicile and residency abridging the Jurisdiction of the Constitution to territorial limits on the one hand while on the other hand, apparently out of the Justices view, it operates with impunity making Citizens of US Citizens prodigy where ever in the world they may be, along with other ‘immediate family members’.”

    You are ridiculed because you make no sense. Gray’s opinion as a matter of fact is the current law and is supported by all pre-existing legal authority in the United States in the early Republic. Domicile was never the rule in the United States and, honestly, I can’t even understand whatever point you are trying to make. The Court following Wong Kim Ark has repeated over and over that there is no rule of descent under the Constitution and that persons born outside of the United States can only be made citizens by statute.


  137. “Lynch is binding in a federal court? This may not be a very good lesson on dicta but it has been rewarding education on vertical stare decisis.”

    Wong Kim Ark cites Lynch as authority and reiterates its interpretation of citizenship as well as dozens of other early authorities who embrace the jus soli rule. Thus, it is Wong Kim Ark which is binding authority.


  138. Now I am confused. I thought the ratio decidendi of WKA did not define “Natural born citizen”,ballantine.

    What did Nal and I miss?


  139. “Now I am confused. I thought the ratio decidendi of WKA did not define “Natural born citizen”,ballantine.

    What did Nal and I miss?”

    I suggest you read above where I point out in painstaking detail how the ratio decidendi of WKA defined “natural born citizen” according to the English common law. It essentally spent 5 pages saying “natural born citizen” meant the same thing as “natural born subject.” If you can’t understand the majority opinion, I suggest you rad the dissents’s summary of the majority opinion as it really is quite simple although it simply paraphrases what the majority says. Here is the dissent’s simple summary of the majority opinion:

    “The argument is, that, although the Constitution prior to that amendment nowhere attempted to define the words “citizens of the United States” and “natural-born citizen” as used therein, yet that it must be interpreted in the light of the English common law rule which made the place of birth the criterion of nationality; that that rule

    was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established;

    and

    that, before the enactment of the Civil Rights Act of 1866 and the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign Government, were native-born citizens of the United States.

    Thus, the Fourteenth Amendment is held to be merely declaratory except that it brings all persons, irrespective of color, within the scope of the alleged rule, and puts that rule beyond he control of the legislative power.”

    Such is exactly what the majority opinion stated summarized in simple form for the dense to understand.


  140. slcraignbc,

    That’s a pretty limp, lifeless word salad you’ve served up which doesn’t change the fact that the court in Ankeny ruled President Obama a natural born citizen and the only legal arguments to overturn that precedent are completely frivolous. Holding or dicta, Minor says nothing about President Obama’s eligibility…

    Squeeky,

    It’s not cruel to devastate irrational arguments nor to ridicule stupidity and willful ignorance–just don’t hold your breath until they finally learn better…


  141. Insults. Slick job, counselor, you just called Nal “dense.”

    I am relieved that all of Gray’s ramblings carry a weight I did not know they had. I guess the quote from Minor is now a citation with full authority.

    Gray quotes Minor’s assertion that the definition of Natural Born cannot be found in the Constitution, he then goes on a filibuster to define Natural born, and according to you, he determines that Natural born citizens are the same as 14th amendment citizens.

    ???

    So, it is in the Constitution. Wait, no it’s not. Oh yes it is! Didn’t Kirk kill a robot this way?


  142. Komfort:

    You said: Lynch is binding in a federal court? This may not be a very good lesson on dicta but it has been rewarding education on vertical stare decisis.

    Learn to read. Learn to comprehend what you read. slcraignbc stated:

    There was NO jus soli for those not born of Citizens prior to the 14th and the 14th ONLY provided Collective naturalization to those persons who were previously denied Citizenship. ”

    I pointed out a case from 1844, which was 24 years prior to the 14th which flatly contradicted him. Duh. I never said the New York case was binding on Federal courts. Yet, as was pointed out above, Wong Kim Ark did cite the case.

    Try to keep up. OK???

    Squeeky Fromm
    Girl Reporter


  143. In Ark, the question before the Court was whether a child born in the United States, to ordinary alien parents, becomes a citizen at birth via the Fourteenth Amendment.

    Whether that child is a “natural-born citizen” or not, is not necessary to the determination if that child is a citizen at birth. Therefore, any “natural-born citizen” content, no matter how extensive and accurate the analysis, is dicta.


  144. Now that we have disposed of the myth that the US Supreme Court in Minor v. Happersett ruled that two US citizen parents are required to be a Natural Born US Citizen, it is worth asking how a US Supreme Court would rule today.

    The idea that two US citizen parents are required to be president is based on the notion that children born in the United States of foreign parents are somehow less reliable citizens than US-born children of US parents.

    IF you believe that that is true, then it is possible to believe that the writers of the Constitution also believed it—despite the fact that they did not say it. There are no articles from the writers of the US Constitution saying that they considered the US-born children of foreigners would be security risks or that they should be treated differently than the US-born children of American citizens.

    On the other hand, if you DO NOT believe that this notion is true, if you cannot see a way in which US-born children of foreigners are likely to be less reliable than US-born children of US citizens (given that the US-born children of US citizens also can be unreliable), then it is difficult if not impossible to believe that the writers of the US Constitution believed it. If they had said that they believed it, that would be a different thing, but they didn’t.

    What this means is that in addition to the four liberal justices on the Supreme Court, virtually all the conservatives would vote against the two-parent theory as well.

    The conservative justices would not have to ask themselves whether making the US-born children of foreigners not eligible to be president is a good thing or a bad thing. The fact is that the writers of the US Constitution did not say that wanted the US-born children of foreigners to be treated differently than the US-born children of US citizens, and that absence is sufficient.

    Under strict construction principles, if the US Constitution does not say it, the US Constitution does not mean it. So the strict constructionists among the conservative justices would not vote for the two-parent theory.

    As for the originalists, the historical evidence holds overwhelmingly that the meaning of Natural Born at the time the Constitution was written refers to the meaning of Natural Born Subject in the common law. The idea that the writers of the Constitution, who were mainly lawyers and justices, would pull the phrase out of Vattel (whose words were not even translated to use the words “Natural Born Citizen” until a decade after the Constitution) is simply laughable.

    Moreover, originalist justices on the US Supreme Court would have the guidance of the Wong Kim Ark ruling as to the original meaning of Natural Born. And, when they do their own research, the justices would have the evidence of such uses of the term Natural Born Citizen in the years around when the Constitution was written as this, written in 1803:

    “Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. …St. George Tucker, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)

    As you can see, the meaning of Natural Born Citizen refers only to the place of birth, not to parents. Natural Born Citizens were “those born within the state.”

    And this, written in 1829 by a man familiar with many of the writers of the Constitution:

    “Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”—William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)

    Thus the votes of the originalists among the conservative justices are lost to the two-parent theory as well as the strict-constructionists.

    These conservative justices, the strict constructionists and the originalists, would likely then review the Minor v Happersett decision, and determine, as is obvious, that it is dicta and not a ruling, and that the statement that at one time there were doubts is meaningless in any case. (At one time there were doubts as to whether zippers would work).

    So, if the case were ever called by the US Supreme Court, it is likely that the two-parent theory would lose with the vote being nine to zero, or maybe eight to one.

    But the court will never call the case because to call it you have to get four justices who think that it is an issue—and if you have eight or nine justices who think that the Constitution is obvious how can you get four justices to think that it is an issue?

    At this point two-fers often reply that it does not matter whether the US Supreme Court calls the case or what it would rule, they think that the two-parent theory really is what the Constitution meant. The obvious answer to this is that even if they were right, the law is based on court rulings, and if there is no court ruling that two citizen parents are required, it is not the law.

    But in a broader sense they are right. It is possible for each of us to hold a theory about what the Constitution means, and that is really what we are discussing here. In the debate about what the US Constitution meant in the phrase Natural Born Citizen, we can be liberals, in which case the idea that it meant that a child with two citizen parents is better than a child with foreign parents is profoundly immoral, not to mention wrong.

    Or, we can be strict constructionists, in which case the fact that the writers of the US Constitution never said that they intended for the US-born children of foreigners to be treated differently than the US-born children of American citizens is sufficient. Or we can be originalists, in which case the meaning in the common law, and the quotations from Tucker and Rawle (and the fact that Vattel is not mentioned in the Federalist Papers while the common law often is) will be the guide.

    The two-parent theory is absurd in itself, and the notion that the majority of justices in the Minor v. Happersett case held to it is equally absurd.


  145. Nal said:

    In Ark, the question before the Court was whether a child born in the United States, to ordinary alien parents, becomes a citizen at birth via the Fourteenth Amendment.

    Whether that child is a “natural-born citizen” or not, is not necessary to the determination if that child is a citizen at birth. Therefore, any “natural-born citizen” content, no matter how extensive and accurate the analysis, is dicta.

    Nal is playing fair. Thanks Nal, there goes 90% of the bloggers here who won’t engage in that conclusion.


  146. Despite the contempt you have shown, I will take your advice and attempt to improve my reading skills.

    I will start with this:

    “However, in 1898 Wong Kim Ark answered all those questions, and YES!!!, if you were born here and not the kid of a diplomat or alien invader, then you were a NBC!

    Squeeky Fromm”

    By “answered” do you mean they “held”?

    That would contradict this:

    “In Ark, the question before the Court was whether a child born in the United States, to ordinary alien parents, becomes a citizen at birth via the Fourteenth Amendment.
    Whether that child is a “natural-born citizen” or not, is not necessary to the determination if that child is a citizen at birth. Therefore, any “natural-born citizen” content, no matter how extensive and accurate the analysis, is dicta”

    Show your style, girl, let Nal have it! (Of course I may have misinterpreted what you wrote. Duh on me, if I did.)


  147. Komfort:

    I wrote a very kewl Motion here, and it disappeared into limbo. I am waiting for it. Give me a few minutes.

    Squeeky Fromm
    Girl Reporter


  148. I will check tomorrow. I hope it stays on the dicta topic.


  149. Nal:

    (I am having trouble getting this to post. There aren’t any naughty words in it. Plus, another post went thru on me, sooo I am not banned or anything. If this duplicates, I am sorry. Just keep the latest one time wise.)

    I respectfully make a Motion for Reconsideration regarding your decision to classify the language from Wong Kim Ark as “dicta.”

    You said above:

    While “we hold that …” or “the rule is …” are frequently giveaways to holdings, it is no guarantee in the holdings/dictum debate. In United States v. Rubin (1979), J. Friendly, in a concurring opinion, wrote:

    A judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word “hold”.

    The subject language begins:

    From Section V, Wong Kim Ark:

    The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory. . .

    I would submit that the language, “the foregoing considerations and authorities irresistibly lead us to these conclusions” goes far beyond mere “wand waving” and “uttering words” and constitutes an actual conclusion of the SCOTUS on a point germane and relevant to the decision, to wit, that the 14th Amendment is rooted in the common law concept of natural born citizenship, and declaratory thereof.

    There was no dispute as to the place of Wong Kim Ark’s birth. The only question was the meaning of the term “under the jurisdiction” as required by the 14th Amendment, and without a finding that the 14th Amendment was an affirmation of the concept of natural born citizenship, the Court would have been left to create its own interpretation of the term.

    Therefore, such a conclusion was a necessary step and indispensable finding on the pathway to interpret the meaning of the phrase, “under the jurisdiction” as found in the 14th Amendment.

    Further, said subject language was fully cited in the Appeals court level decision of Ankeny v. Governor, thus again proving the necessity for this intermediate conclusion, that the 14th Amendment was based in the old common law concept of natural born citizenship. Since 1868, the year of passage of the 14th Amendment, additions to citizenship would have to be via the 14th Amendment. Without that finding, that the 14th Amendment was rooted in the common law, that Court would have been left to fly by the seat of its pants.

    Such a characterization would be absurd in light of the clear and definite language used by the Wong Kim Ark Court, to wit: “The foregoing considerations and authorities irresistibly lead us to these conclusions. . .”

    Respectfully submitted,

    Squeeky Fromm
    Girl Reporter
    pro se

    PS: I do some typing and stuff for my BFF Fabia Sheen, Esq., a lawyer, sooo I hope my “Motion” isn’t too bad.


  150. @ Nal:

    Is there anything in Wong Kim Ark to suggest that SCOTUS held that he was a citizen but not a natural-born citizen?


  151. Quote: “Whether that child is a “natural-born citizen” or not, is not necessary to the determination if that child is a citizen at birth.”

    A child who is a citizen at birth is born a citizen, and hence, a natural-born citizen.


  152. “Insults. Slick job, counselor, you just called Nal “dense.”

    I am relieved that all of Gray’s ramblings carry a weight I did not know they had. I guess the quote from Minor is now a citation with full authority.

    Gray quotes Minor’s assertion that the definition of Natural Born cannot be found in the Constitution, he then goes on a filibuster to define Natural born, and according to you, he determines that Natural born citizens are the same as 14th amendment citizens.

    ???

    So, it is in the Constitution. Wait, no it’s not. Oh yes it is! Didn’t Kirk kill a robot this way?”

    Justice Gray points out that undefined terms in the Constitution should be defined by the common law. Justice Waite said the same thing in Minor and the court has said the same thing a hundred times because the common law the legal system of the founders as it was in place in every state. The court goes on to state that “natural born citizen” is thus derivative of “natural born subject” and cite authority after authority that we had adopted the common law rule. Calling Gray’s comprehensive history lesson on the origins of the nationality law of England and the United States “ramblings” shows you are not serious in trying to understand what the court has said.

    After spending 20 pages on the common law under the original constitution, Gray finally turns to the 14th Amendment. He say it is simply declaratory of pre-existing law:

    “the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption.” Hence it is “declaratory of existing rights and affirmative of existing law as to each of the qualifications therein expressed.”

    Hence, Gray defines the 14th Amendmnt with the definition of “natural born subject” that he had just told us defined “natural born citizen”:

    The 14th Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.”

    That is the definition of “natural born subject” from Calvin’s Case with indian tribes thrown in as an additional excpetion, an excecption the British maintained as well and one that was discussed in great detail in the 39th Congress. No legal authority has ever said the 14th Amendment created a different type of citizenship than the original Constitution and the Amendment simply restated the original rule but made clear it was color-blind. According to Gray:

    “Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, (1857) 19 How. 393, and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States.”


  153. “Whether that child is a “natural-born citizen” or not, is not necessary to the determination if that child is a citizen at birth. Therefore, any “natural-born citizen” content, no matter how extensive and accurate the analysis, is dicta”

    It is not dicta if the 14th Amendment is deemed declaratory of pre-existing law which I pointed out is what Gray said. Gray was asked in WKA was a citizen under the 14th Amendment. Gary said the Amendment was simply declaratory of pre-existing law. Hence, the determination of WKA’s citizen depended on his status under the original Constitution where the only type of citizen by birth was a natural born citizen. Thus, the examination of the pre-existing law under the original Constitution is clearly necessary to answer the question presented and is not dicta. One can spin all one wants, but if WKA was not a natural born citizen, how could he be a citizen under the 14th Amendment if the Amendment was simply declaratory?


  154. For those who cling to their English Law and State courts to remain in the debate I suggest you relent and accept that the Constitution is the Supreme Law of the land and realize that among the enumerated powers of the Congress you’ll find at Articles I Section VIII;

    “…To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;…”

    Now, please show me the ACT that ESTABLISHES Jus Soli, or are you going to argue that the Congresses plenary power over immigration ends at the shores…?

    Lynch was a Probate/Estate inheritance case, in a New York Chancery Court with the most pertinent aspect of the case being that there was property and money involved. A New York Judge would naturalize a rat off a ship from Timbuktu for the right price, so you keep your Lynch and I’ll keep the Constitution.

    TITLE 8 > CHAPTER 12 > SUBCHAPTER III > Part I

    Nationality at Birth and Collective Naturalization

    The following shall be nationals and citizens of the United States at birth:

    (a) a person born in the United States, and subject to the jurisdiction thereof;

    You may dispute my reading of the codification of the “collective naturalization provision” of the declaratory born statement of the 14th but then that is to be expected, but the point is. THIS is the 1st instance of an expression of jus soli, under the Rule of Law emanating from the Constitution, with the various DICTA emanating from the various Courts notwithstanding.


  155. “Now, please show me the ACT that ESTABLISHES Jus Soli, or are you going to argue that the Congresses plenary power over immigration ends at the shores…?”

    You don’t understand that naturalization statutes are just for persons who are not native born. No statute existed prior to 1866 conferring citizenship on persons born in the United States because such were citizens by operation of the Constitution, first in the natural born citizenship clause and then the 14th Amendment. Today’s statute just restates the 14th Amendment which of course Congress has no power to change. No court in our history has ever said someone born on our soil is a citizen by virtue of statute. In fact, according to our courts, “naturalization” by definition only applies to the foreign born:

    “The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class.” Chief Justice Taney, Dred Scott v. Sandford, 60 U.S. at 417 (1857)

    “It appears, then, that the only power expressly granted to Congress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth.” Justice Curtis, Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 478 (1857)

    “But what is naturalization? It is the removal of the disabilities of alienage… Congress has power ” to establish an uniform rule of naturalization….An alien naturalized is “to all intents and purposes a natural born subject…The power is applicable only to those of foreign birth. Alienage is an indispensable element in the process. To make one of domestic birth a citizen, is not naturalization, and cannot be brought within the exercise of that power. There is an universal agreement of opinion upon this subject.”Justice Swayne, United States v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866)


  156. Squeeky,

    The WordPress spam filter gets flaky sometimes and won’t pass comments for some unknown reason. Nothing the blog administrators can do about that except flag a comment as not spam, then the comment will show up. Let us know if any of your comments don’t show up, we can clear them.

    Ballentine,

    You did previously post about the declaratory nature of the 14th. I need to think about that implication some more. I don’t see that the declaratory nature of the 14th is necessary to answer the question before the Court.


  157. If the purpose of the amendment reaffirms pre-existing law, how can one define it without determining what the pre-existing law was. One can’t.


  158. What’s the difference if the 14th “reaffirms pre-existing law” or not?

    The question before the Court stopped at the 14th. Whether the 14th “reaffirms pre-existing law,” or not, seems more like a political or historical question.


  159. Does Gray’s Minor cite, that declares the definition on “natural born” in not found in the Constitution, contradict your interpretation?

    Although I can’t stop you, I do ask you to explain without insults. Just trying to learn about dicta.


  160. Ballantine, I scrolled past your earlier post, by mistake. I will read it now. Sorry for posting the Minor question, if you already answered it.


  161. “The question before the Court stopped at the 14th. Whether the 14th “reaffirms pre-existing law,” or not, seems more like a political or historical question.”

    My view is that the holding goes to the question answered. However, the ratio decidendi or the rationale the court uses to come to its holding is broader than the holding. One cannot get to Gray’s definition of the 14th Amendment without defining pre-existing law and hence is part of the rationale of the court.


  162. @Philo-Publius

    Since you referenced Mario Apuzzo it is appropriate to note that he just speculated on his blog that President Obama is not the child of Stanley Anne Dunham but is instead the child of a woman named Jo Ann Newman and Malcolm X. http://puzo1.blogspot.com/2011/11/is-putative-president-barack-obamas.html He still argues that Obama is not a natural born citizen however!

    Also, is it just a coincidence that your screen name is suspiciously similar to “Mountain Publius Goat” used by Apuzzo’s client Charles Kerchner?


  163. Not sure I understand the question. The Constitution is full of undefined terms. When the Court is asked to defined such terms it usually looks to the common law since common law lawyers wrote the Constitution. Gray cites Minor and several other cases for this proposition that terms not defined in the constitution should be defined by the common law:

    “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.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.”

    Waite and Gray were both on the Smith v. Alabama court:

    “There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

    Not sure this has anything to do with whether this is dicta or not.


  164. Ok, you got me on WKA. I have not read it with such scrutiny. I disregarded much of Gray’s “dicta”.
    I will reread.

    I am worried that Laurence Tribe and Ted Olsen missed as much as I did. IIRC as Gray pulled quotes from British law to define Natural Born Citizen, he found many instances where a British child, born out of british land, but to a British father, was a Natural Born Subject. The non dicta in WKA would have made their testimony, in SR 511, for McCain, a slam dunk.

    Where does the dicta end and the authority began? You pointed to 5 pages, but you also mention the 20 pages.


  165. Not being an attorney, I tend to rely on old-fashioned common sense and logic. Noting that the Constitution requires members of Congress to be “citizens” while the CIC must be “natural born” implies that the framers were indeed making a point.

    Whether this point related solely to the soil on which the candidate was born, at that moment of birth, is laughable. The fourteen-year residency is an additional requirement, so obviously they were talking about something other than place.

    As a member of the unwashed masses, I consider that the framers were simply attempting to ensure strong and singular allegiance, the kind that comes from parentage.

    Vattel’s writings, as much as many of you here prefer to argue otherwise, were influential on the founders as well as the courts. His “common sense” statements regarding “natural born” citizenship as birth to two citizen parents are also interestingly similar to another very famous philosopher with whom I’m sure the framers would have been familiar: Aristotle.

    In Politics, Book 3, Aristotle wrote the following:

    “Part 1: …Who is the citizen, and what is the meaning of the term?…Leaving out of consideration those who have been made citizens, or who have obtained the name of citizen any other accidental manner, we may say, first, that a citizen is not a citizen because he lives in a certain place, for resident aliens and slaves share in the place; nor is he a citizen who has no legal right except that of suing and being sued; for this right may be enjoyed under the provisions of a treaty…

    Part 2: But in practice a citizen is defined to be one of whom both the parents are citizens…

    Part 3: …It would be a very superficial view which considered only the place and the inhabitants (for the soil and the population may be separated, and some of the inhabitants may live in one place and some in another)….

    Part 5: … But in many states the law goes to the length of admitting aliens; for in some democracies a man is a citizen though his mother only be a citizen; and a similar principle is applied to illegitimate children; the law is relaxed when there is a dearth of population. But when the number of citizens increases, first the children of a male or a female slave are excluded; then those whose mothers only are citizens; and at last the right of citizenship is confined to those whose fathers and mothers are both citizens…”

    http://classics.mit.edu/Aristotle/politics.3.three.html

    The language of Vattel and Aristotle is also interestingly similar to that contained in the first version of Larry Solum’s Michigan Law Review paper on the subject of McCain’s eligibility, which he later changed in a second version the phrase “whose parents are citizens” to “with an American parent,” with no explanation for the change other than the added phrase, “as a matter of inclusion.” Very lawyer-esque–what, no citations of case law in support?

    To see some of you here actually contradict yourselves while arguing the very narrow ruling of WKA is also quite entertaining. And I have yet to see any of you answer with facts, and not opinions, Donofrio’s question as to why Lockwood included the phrase “this Court held…” when referring to what you call the dicta of Minor.

    The condescension displayed on this forum to “birthers” is also quite stunning and sad, considering the time and attention given by other attorneys and academia on the McCain question. Squeeky brought up Breckinridge Long, who once argued against the eligibility of Presidential candidate Charles Evans Hughes (an opponent of Woodrow Wilson) because of his dual citizenship at birth (his father did not naturalize until after Hughes was born), and fortunately for Long, he wasn’t labeled a crazy racist “birther” and went on to serve in the State Department under two Presidents. Imagine that.

    Common sense also tells me that “birthright citizenship” and the “birther” controversies are unavoidably intertwined, because proponents of the first are typically the opponents of the second, arguing that the 14th amendment and WKA grant “natural born” citizenship to anyone born on US soil.

    Obviously, to argue otherwise would cast a shadow on the eligibility of Obama. So, these must consider that anchor babies, even children born to tourists, as long as they live here for 14 years, are eligible to the Presidency; and people like Hamdi and al-Awlaki are also natural born citizens entitled to habeus corpus.

    Those of us outside the ruling class of these attorneys and academics, relying on common sense, consider that “natural born” implies, simply, that no laws are required to make the person a citizen; they are a citizen by virtue of natural law: born in the country to parents who are citizens.

    No operation of any statute is required to make a “natural born” citizen, thus he is the opposite of “naturalized.” The resulting difference between the two, then, is the inescapable fact that the “natural born” citizen from birth held only a single citizenship. To the framers, this condition implied and preserved the “allegiance” they were attempting to ensure for the office of the presidency.


  166. I think Tribe and Olson did miss a lot. First, they failed to recognize that under the Insular cases and the naturalization laws in effect when McCain was born, McCain might not have even been a citizen. The Canel zone was not treated as US territory for purposes of the 14th Amendment. I don’t think they cited Wong Kim Ark but merely asserted that persons born on US soil were natural born due to the English common law rule. If they read Wong Kim Ark, they would have found the court said:

    “A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.”

    Such is not helpful to McCain. However, this is clearly dicta for the issue of foreign born persons was not before the court.

    I have seen lawyers argue forever about whether something is dicta or not. My view is one needs to look at the rationale the court used to answer the question presented. In WKA, I thus view pages 653 to 675 which defines citizenship law under the original Constitution to be part of the rationale since the Court then goes on to say the 14th Amendment simply reaffirmed this definition. The discussion on citizenship law under the original Constitution begins with the statement that “natural born citizen” must be defined by the English common law and, thus, the definition of “natural born subject” “was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established” and that “natural born citizen” and “natural born subject” mean the same thing.


  167. “Whether this point related solely to the soil on which the candidate was born, at that moment of birth, is laughable.”

    Just because you say so does not make it true. One needed to be born on English soil to sit in Parliament. In the Convention, place of birth like the English rule was the only thing discussed. Simply not a shred of evidence anyone thought parentage of Vattel’s definition was relevant.

    “Vattel’s writings, as much as many of you here prefer to argue otherwise, were influential on the founders as well as the courts.”

    Not really. Blackstone and Coke were cited far more often. There is no evidence that Vattel was relied upon for any provision of the Constitution while it is simply a fact that much, if not most, of the Constitution was based upon English law. And, of course, the words “natural born citizen” were not in any edition of Vattel in 1787. Finally, name a single person prior to the Civil War who ever said “natural bon citizen” was defined by Vattel or by any definition other than the English common law. Doesn’t exist.

    “Common sense also tells me that “birthright citizenship” and the “birther” controversies are unavoidably intertwined, because proponents of the first are typically the opponents of the second, arguing that the 14th amendment and WKA grant “natural born” citizenship to anyone born on US soil.”

    Yes, the members of the 14th Amendment Congress were fully aware that they were clarifying who would be President as some were wary of a black or Chinese President. The “subject to the “jurisdiction” is simply another way of defining the English concept of allegiance or subjection as put forth by Coke and Blackstone. You may not like birthright citizenship, but both the framers of the original Constitution and the 14th Amendment clearly embraced it so you issue is with them.


  168. Sallyven said: “The fourteen-year residency is an additional requirement, so obviously they were talking about something other than place.”

    There is no evidence, and there would HAVE to be evidence under strict construction principles, that the writers of the US Constitution were talking about anything other than place. That is what Natural Born meant under the common law, and they were overwhelmingly lawyers, familiar with the common law. And here is an example of how the phrase Natural Born Citizen was used in 1803, shortly after the US Constitution was written:

    “Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. …St. George Tucker, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)

    As you can see, it refers only to place. Natural Born Citizens were “those born within a state.”

    IF the writers of the US Constitution had meant Natural Born Citizen to mean anything other than the use of Natural Born in the common law, they would have told us–and they didn’t.


  169. Hello, Ballantine, its been a while. Resorting to hints of racism, again?

    Among a few other things I’ve never seen fully addressed on these forums: the long-standing notion of “partus sequitur patrem,” also mentioned by Fuller in his WKA dissent.

    The Court recently held, in Flores-Villar v. US, that naturalization laws can indeed differ depending on whether the US citizen parent is the mother or the father.

    By virtue of the Cable Act, US citizen wives no longer lost their citizenship when they married a foreigner, thus the quandary established that a child could be born a dual citizen, while at the same time foreign-born individuals, in order to become a US citizen, were (and are still formally) required to reject past citizenships. Fair?

    I cannot imagine that the framers would have agreed with such an inconsistency, and likely never regarded the concept of “dual citizenship” as other than, as some scholars have suggested, a state of “civic bigamy.”

    In fact, if they considered even the taint of past foreign citizenship as precluding the right of a naturalized citizen to become president, you sincerely believe they would have allowed one actually born into a state of multiple citizenships to be eligible? Please.


  170. WKA held that natural born citizen and natural born subject mean the same thing.

    A child born overseas to British lineage is a natural born subject. A child born overseas to American lineage is not a natural born citizen, unless a non-binding resolution says othewise.

    I will study the definition of synonyms before I reread WKA.


  171. “The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone. We might, perhaps, decide the case upon other grounds, but this question is fairly made. From the opinion we find that it was the only one decided in the court below, and it is the only one which has been argued here.” Justice Waite

    From the opening statement the Court establishes dominence of Constitutional authority ie; “in the court below”. The question, since the adoption of the fourteenth amendment and “who” is a citizen of the United States becomes the foundation of the opinion as to suffrage (the right to vote), ie; “a citizen”. Justice Waite distinguishes citizenship as of the Constitution in only per the Constitution, “a natural-born Citizen”, not to the latter to ascertain citizenship of the United States. One being the foundation of the law, the Constitution, ie; “natural-born Citizen” the latter a right of citizenship by amendment or by a law enacted to the Constitution. “The question is fairly made”.


  172. “I cannot imagine that the framers would have agreed with such an inconsistency, and likely never regarded the concept of “dual citizenship” as other than, as some scholars have suggested, a state of “civic bigamy.”

    In fact, if they considered even the taint of past foreign citizenship as precluding the right of a naturalized citizen to become president, you sincerely believe they would have allowed one actually born into a state of multiple citizenships to be eligible? Please.”

    You can speculate all you want on what you believe the founders would have thought. In law, you need to cite authority, not speculation. No founder said dual citizenship was relevant. It wasn’t relevant under English law and no one said it was relevant in the US. In the Convention there were a few delegates who feared that foreign born persons would have attachments to their native land. No one suggested native born persons had such attachments.

    For those who push the dual citizenship theory, do you really not do any critical thinking and realize that foreign nations could make all americans dual citizens if they wanted to. No nation lets other nations determine who there citizens are. Such is an absurd notion. Rather, it is simply a fact that most Americants in the early Republic did have dual citizenship under the laws of Europe. The reaction of our state department and Congress was to declare that we did not recognize any foreign claims of allegiance on our citizens. Of course, when our citizens left our Country to issue became more complicated.


  173. Ballentine, other nations cannot create binding citizenship arbitrarily. That defeats the notion of sovereignty. Please do not go down the “we are all Russian, if Russia says so” line of thinking. It is beneath your other arguments.


  174. You are in direct contrdiction of the US Department of State. They specifically recognise dual citizenship, but do not encourage it.

    I do want to stay on the dicta topic, though.


  175. Sallyven said:

    “In fact, if they considered even the taint of past foreign citizenship as precluding the right of a naturalized citizen to become president, you sincerely believe they would have allowed one actually born into a state of multiple citizenships to be eligible? Please.”

    Under strict construction principles if they didn’t say it, they didn’t mean it, and they didn’t say it.


  176. “Ballentine, other nations cannot create binding citizenship arbitrarily. That defeats the notion of sovereignty. Please do not go down the “we are all Russian, if Russia says so” line of thinking. It is beneath your other arguments.”

    As was reported to Congress , the nations of Europe in the early republic transmitted citizenship by descent for 2 or 3 generations making most Americans dual citizens even if born in the United States to citizen parents. There is no rule that they couldn’t extend such for as many generations as they wanted. Since we are a nation of immigrants certainly everyone in the early repulic could have been a dual citizen by operation of foreign law. However, citizenship is a creature of the municipal law of each nation that is binding inside the sovereign nation, but under Public Law, it has no effect outside such nation without the consent of the other nation. Accordingly, the United States simply ignored claims of foreign allegiance.


  177. Ballantine, your statement: “For those who push the dual citizenship theory, do you really not do any critical thinking and realize that foreign nations could make all americans dual citizens if they wanted to,” is just priceless. Is this the best you can do?

    If a child is born in their territory, I suppose a nation does have a right to confer citizenship, although why they would want to do so is an interesting question. If you had a baby while on vacation in Jamaica, if Jamaica had jus soli laws, your child could have dual citizenship, although I’m not sure that Jamaica has enough to offer so that this status would be thought of as a good thing. Such a citizenship would imply that the child could vote in Jamaican elections, and wear their uniform if called to war? Hmm.

    But countries also have the right to bestow citizenship on the children of their citizens, no matter where they are born…wasn’t this the idea pushed for McCain?

    So your statement is ridiculous. Foreign nations, if a birth does not take place on their soil or to its citizens, have no right to “make all americans dual citizens if they wanted to.” Even if they tried to, you really believe anyone would take them seriously?

    Yet, I am the one not thinking critically?


  178. “You are in direct contrdiction of the US Department of State. They specifically recognise dual citizenship, but do not encourage it.

    I do want to stay on the dicta topic, though.”

    I am talking about the early republic, not today’s law. We recognized people were dual citizens in the early republic as well, we didn’t recognize that people owed a dual allegiance at least when they were in the United States. When they domiciled oversees was a matter nations argued about as the public law was unclear. This is a pretty complicated subject but any nation can make a foreign born person a citizen for municipal purposes. Such doesn’t mean one can claim their allegiance under public law. England made children of its subjects born on our soil British subjects for municipal purposes. It meant they had the municipal rights of British subjects when in England but did not mean they could claim the political allegiance of such subjects under notions of public law at least without a protest from the United States. One can look all day and find no one in the Early Republic that thought a baby born on our soul owed a foreign allegiance.


  179. Komfort, interesting that this same State Department, when addressing the security clearance of employees and contractors, is in fact very interested in the status of dual citizenship, noting that such a status may find an application rejected?

    I do respect your desire to stay on topic. I was making the point that sometimes there is the need to step back and use a little common sense, even if evaluating whether a portion of a holding is dicta or precedent. After all, couldn’t either be simply a restatement of such common sense?

    This is why there is such an outcry against “birthright citizenship” by many of us–such an idea flies in the face of logic, especially when one reads the history of our founders’ notions of “consent.”


  180. A question to those who may understand the legality of a document such as the Constitution. Their is a term or a status defining such a proculmation in legal terms such that the document must be construed in only just such a fashion in order to be acceptable to other entities in presentation. Just something thats been gnawing at me since all of this concern, I think it was in Elementary School since and can’t seem to remember or find it on the internet. Thanks.


  181. Komfort said: “WKA held that natural born citizen and natural born subject mean the same thing.”

    NO it didn’t. It said that the Natural Born part of Natural Born Citizen means the same thing as the Natural Born part of Natural Born Subject. It also said that in general subjects and citizens are the same, but obviously laws change and if the British or the US changes its laws on citizenship, the requirements for citizenship will differ.

    Re: “A child born overseas to British lineage is a natural born subject. A child born overseas to American lineage is not a natural born citizen, unless a non-binding resolution says othewise.

    I was not aware that this is the case in Britain now. However, it certainly was not the case when the Constitution was written. At that time Natural Born referred to birth within the jurisdiction, mainly meaning “in the country” but also including other areas dominated by the British crown.


  182. “But countries also have the right to bestow citizenship on the children of their citizens, no matter where they are born…wasn’t this the idea pushed for McCain?”

    There is no rule on what persons they could bestow the rights of citizenship on. European nations bestowed it for 2 or 3 generations from descent and could have made it 5 or 6 or 7 if they wanted to. Such is the municipal right of every nation. Doesn’t mean saw law has any effect in the United States or under international law. People in Obama position in 1878, on US soil with a British father, was a dual citizen in the sense that if he went back to England, and only if he went back to England, he would have the municipal rights of a British subject. While in the United States England would not insist he owed allegiance to England and, even if he went back to England, the United States would still claim that he owed his sole political allegiance to the United States. No one said such dual citizenship relevant to anyone’s citizenship status or eligiblity to be President. Woodrow Wilson was such a dual citizen. Andrew Johnson probably was though we are not certain where his father was born. Again, in 1868, it was reported to Congress that a majority of our native born citizens were such dual citizens.


  183. Ellen, please read Ballentine’s 10:47, and dispute that with him. I was repeating his assertion.

    I would appreciate it if you would post the non-dicta portion of WKA that separates the natural from the born, or was it the born from the subject. That might settle this issue.


  184. Plus, on this dicta stuff, I asked my BFF Fabia Sheen, Esq, again this morning and she said that judges are NOT One L’s, and they don’t have to follow “IRAQ”(???) when they write their decisions. She said on a long decision like Wong Kim Ark, they are going to do findings and holdings all through the case. She said that they don’t have to save them all up and put them all at the end sooo that the Professor will give them points for form. And that this was particularly true back in 1898.

    She said that on a case like Wong Kim Ark, you may have to read it several times, with a yellow highlighter, to understand how it all ties together. And, that the stuff I read to her from above was NOT dicta. That it was highly unlikely that 3 appeals court level judges would cite dicta at length in their decision. (The Ankeny v. Governor judges)

    She also said that dicta is NOT “everything in the case that isn’t the holding.” She also said the dissent is NOT dicta. It’s the dissent. And that dicta is off hand remarks about stuff not related to the case or clearly un-necessary and un-related to the holding.

    I made her read Wong Kim Ark a few months ago to help explain stuff to me (because she hates all this Birther stuff). Even she had to read the case a few times to get it all, and she is very smart. She said that there were entire sections of the seven section case which dealt the issues the Court found relevant, and that 2 of those 7 sections dealt with natural born citizenship as existed in English common law, and in American law.

    Because interpretation of the 14th Amendment required an understanding of how the law came to be, and whether it was declaratory of old law, or a brand-spanking new law, the determination of natural born citizenship was necessary.

    I hope this help.

    Squeeky Fromm
    Girl Reporter


  185. People in Obama’s situation are dual citizens at birth presently, as well as in the path.

    The multi generation allegiance chain is broken by the first person to renounce citizenship to that nation. Once this is done, there are no legitimate claims to unborn future generations.

    That is a pivotal component of WKA. Wong’s parents were disallowed the ability to break the chain, if you will. The court recognized the absurdity of the Exclusionary Act, and allowed the chain to be broken because their permanent domicile, and employment ,seemed satisfactory.

    If you do not wish to break this chain, then your children will suffer.

    BTW, is Ellen right, Ballentine?


  186. Sallyven,

    Every sovereign nation has the sole right to determine to whom it extends the benefits of citizenship (except the US in the minds of ignorant birthers). If, say, Spain decides that only people born in the US of French parents are Spanish citizens and treats all of the people within its borders accordingly, that is its right as a sovereign nation. France doesn’t have any say about it. Likewise, no British law has anything to do with determining eligibility for the presidency of the United States! The very basis of Vattel birtherism is founded in this unAmerican lunacy based on a mistranslation of a Swiss philosopher writing in French that wasn’t even available until 10 years after the Constitution was ratified.

    http://www.obamaconspiracy.org/bookmarks/fact-checking-and-debunking/the-translation-of-vattel-from-the-french/


  187. There is no rule that the chain was borken by remouncing citizsenship. Foreign nations could have any rule that they wanted with respect to descent. Foreign allegiance or citizenship was irrelevant to Justice Gray’s decision in WKA so I am not sure why you say it is pivital.

    With respect to Ellen, do you mean with respect to a rule of descent in England? England in the 18th century passed 3 different statutes that made children of British subjects “natural born subjects” for all intents and purposes. Such persons were not treated as native born subjects in that they could not hold elected office and generally were not treated as British subjects outside of England other than perhaps for commerical purposes. Imagine Isreal bestowing Isreali citizenship on all American jews. Such would mean that such persons would be given the rights of Isreali citizens if they go to Isreal. Such citizenship would have no effect inside the United States unless the United States would consent to it.


  188. It would help if your BFF would highlight the non-dicta. You could then post all the relevant passages.

    Up until now, I thought this could be resolved by “reading 2 or 3 cases” and “doing a little research”. I guess we really do get by with a little help from our friends.


  189. Ballantine.

    I was referring to this quotation from Blackstone:

    “The children of aliens, born here in England, are, generally speaking, natural-born subjects and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is alien.” http://www.lonang.com/exlibris/blackstone/

    (And the minor exceptions referred to in “generally speaking” refers to the children of foreign diplomats.)

    The WKA ruling also quoted this:

    “Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said:

    By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.”


  190. Slartibartfast, does that mean the US could not do anything to stop Obama’s allegiance to the crown, that his birthright natural born subjecthood bestowed upon him?


  191. “It would help if your BFF would highlight the non-dicta. You could then post all the relevant passages.

    Up until now, I thought this could be resolved by “reading 2 or 3 cases” and “doing a little research”. I guess we really do get by with a little help from our friends.”

    I think we need more help from the BFF after all.


  192. For all the birthers out there, of every persuasion. There are medications for OCD.


  193. If england claimed the allegiane of any American citizen while they were in England all we could do is file a diplomatic protesty or threaten war. Indeed, both ocurred including a real shooting war. We have treaties dealing with some of these issue.


  194. Do those medications help “birther thread” hunters? Why are you commenting? Obsessed?


  195. Komfort,

    It means that President Obama’s allegiance to England (in the eyes of the English), is not relevant to his allegiance to the United States.

    In other words:

    “It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.”

    President Obama was born in the US which is sufficient ascertain his allegiance. We don’t need to go any further–and I’m not the one saying so, James Madison is. Thus the Vattelist position is that the Father of the Constitution didn’t understand citizenship–and they come to this conclusion based on the writings of an incompetent translator a decade after the Constitution was ratified. Is in any wonder that every rational person aware of these arguments thinks that they are idiotic?


  196. Are members of al qaeda “foreign diplomats”?


  197. Sorry Ellen. I am missing your point. The authorties you sight correctly state the common law rule that was in place until 1870 when it was modified to allow children of aliens to denounce their allegiance at majority. This is not the law today and I am not sure when it changed.


  198. Kontort and Mrjr101:

    You asked for some dicta from WKA, sooo here is you some:

    That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: “Allegiance and protection are, in this connection” (that is, in relation to citizenship),

    reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . 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 [p680] 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. 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, but never as to the first. 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.

    Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship.

    PLUS, I am not afraid to double-check myself on stuff. I also do not mind asking for directions if I am out driving and can’t find something. Perhaps if you Vattle Birthers double-checked yourselves once in a while, you wouldn’t be all lost and stuff on cases like Minor v. Happersett. For example, if you think the case was a precedent on natural born citizenship, you could have just double-checked yourself with Ankeny v. Governor where the court said about Minor v. Happersett:

    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, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

    Id. at 167-168. Thus, the [Minor]Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.12

    See! If you had double-checked yourself you would not have gone off on the wild goose chase.

    Squeeky Fromm
    Girl Reporter


  199. Blame the framers for not having the forsight to think of al queda. Such is the problem with strict originalist interpretation as obviously the world has changed. Madison, for eexample, didn’t think the Constitution or the Law of Nations allowed deportation of aliens from nations were are not at war with.


  200. What did the US Department of State, circa Obama’s birth, have to say? Has Madison rendered their Policy, or lack thereof, moot? Has Madison nullified all dual citizens of their second allegiance?

    Powerful stuff.

    I will venture back when BFF posts something, or when Nal is done thinking about WKA’s dicta.


  201. Otteray Scribe,

    Alas, there are currently no know drugs to help control Obama Derangement Syndrome–a malady from which all birthers (and most on the right, it seems) suffer. Milder forms can be recognized by the victim labeling the president as “liberal”, “progressive”, or “socialist”; in more severe cases “communist” or even “nazi”; and in the most severe cases present as birthism.

    Komfort,

    No, there isn’t anything to stop a US-born child of OBL from being a natural born citizen–except the fact that President Obama put a bullet in his head so he wont be having any more children. However, there are many other safeguards that would prevent such a person from becoming POTUS


  202. Alright! We are back to resolving dicta.

    Nal, will you please double check BFF’ work?

    Thanks again, Nal.


  203. Komfort

    “Up until now, I thought this could be resolved by “reading 2 or 3 cases” and “doing a little research”. I guess we really do get by with a little help from our friends.”

    Here is a little research for you to consider:

    “Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.” William Rawle, 1826, “A View of the Constitution of the United States”


  204. ballantine says;

    “You don’t understand that naturalization statutes are just for persons who are not native born. No statute existed prior to 1866 conferring citizenship on persons born in the United States because such were citizens by operation of the Constitution, first in the natural born citizenship clause and then the 14th Amendment. Today’s statute just restates the 14th Amendment which of course Congress has no power to change. No court in our history has ever said someone born on our soil is a citizen by virtue of statute. In fact, according to our courts, “naturalization” by definition only applies to the foreign born:….”

    Now, you are getting close but the statement requires additional analysis in light of the status of Constitutional Law from the time of Adoption forward.

    1st, you must agree that there is NO jus soli grant of Citizenship EXPRESSED in Statutes prior to the 14th, ergo, all ‘persons’ born as “citizens’ were necessarily born of a Citizen FATHER, (women being “assumed” as the same citizenship as her husband) and if born to a ‘alien’ father remained as an alien until the Father naturalized or the child reached the age of majority and naturalized in their own right.

    So the 1st circumstance is the Birthright benefit of Citizens and the 2nd the means of acquiring citizenship through naturalization.

    Secondly in order to Amend Article II Section I Clause V it would be necessary to say so in words or words that would REQUIRE it.

    I find NO such words or REQUIREMENT in the 14th Amendment.

    The goal of the 14th was to make “citizens’ of those that had previously been denied and once citizens, through the “collective naturalization provision of the declaratory born statement, their PRODIGY would become natural born Citizens with the passing of time, just as anticipated by the Founding Generation, who chose NOT to deem their selves natural born Citizens, but rather opted to follow the NATURAL and Common laws historical understanding as to how said class of citizens sprung from the seeds planted in a new “State”.

    So, although you are approaching a reasonable understanding of the LAWS under the Constitution as they existed and exist, still a tad more critical thinking is demanded.


  205. Squeeky,

    That’s what happens when someone comes to a conclusion and then sets about “proving” it–it doesn’t work nearly as well as the methods you suggest, does it?

    Komfort,

    The US department of State said the President Obama was a US Citizen (and there is no evidence he ever naturalized, so he must be natural born) while investigating for his father’s visa request. Regarding Madison–the US doesn’t recognize dual citizenship. If they consider you a US citizen, they will not treat you as a foreigner (even if you hold a foreign passport). We don’t ask the rest of the world who they will let us elect to the presidency–we decide who we consider eligible–those born under the jurisdiction of the United State. Like President Obama.


  206. I thought we were supposed to research holdings, dicta, and stare decisis for the purposes of this thread.

    No wonder Otreray scribe thinks this OS a birther thread; you are leading him astray.


  207. slcraignbc,

    You’re assuming the the 14th Amendment changed the law rather than extending existing law to the former slaves. Please show us an example of two white people born under the same circumstances before and after the 14th Amendment who were treated differently under the law (which you claim has changed). If you can’t do that, then your argument isn’t rational (don’t worry–we already knew that…).


  208. “The U.S. Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause. Claims of other countries on dual national U.S. citizens may conflict with U.S. law, and dual nationality may limit U.S. Government efforts to assist citizens abroad. The country where a dual national is located generally has a stronger claim to that person’s allegiance.

    However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there.Most U.S. citizens, including dual nationals, must use a U.S. passport to enter and leave the United States. Dual nationals may also be required by the foreign country to use its passport to enter and leave that country. Use of the foreign passport does not endanger U.S. citizenship.Most countries permit a person to renounce or otherwise lose citizenship.”

    http://travel.state.gov/travel/cis_pa_tw/cis/cis_1753.html

    Some things are tough to prove.


  209. Also, “for the record”: any allegiance President Obama may have had to England was lost when England granted Kenya independence (when he was two years old). And any allegiance President Obama may have had to Kenya was lost (when he was 23 at the latest) under the terms of Kenyan Constitution then in effect

    So this “dual allegiance” concern is entirely hypothetical.


  210. “1st, you must agree that there is NO jus soli grant of Citizenship EXPRESSED in Statutes prior to the 14th, ergo, all ‘persons’ born as “citizens’ were necessarily born of a Citizen FATHER..”

    No. It means that such persons didn’t need citizenship by statute just like in England. Justice Waite didn’t look to any statute to define who was natural born. He looked to the common law. Justice Gray didn’t look to any statute to define who was natural born, he looked to the common law. No legal authority in our history has ever said a native born person get’s his citizenship from a statute. Do you really not understand this? Cite one legal authority in the early republic who ever said one needed a citizen father. You cannot as there are none. You can keep saying you are right and the Supreme Court and every early legal authority is wrong all you want. No one cares.

    “The goal of the 14th was to make “citizens’ of those that had previously been denied and once citizens, through the “collective naturalization provision of the declaratory born statement, their PRODIGY would become natural born Citizens with the passing of time, just as anticipated by the Founding Generation, who chose NOT to deem their selves natural born Citizens, but rather opted to follow the NATURAL and Common laws historical understanding as to how said class of citizens sprung from the seeds planted in a new “State”.”

    You obviously have not read anything the 39th Congress said as no one said anything remotely similar to your gibberish. Seriously, admit it, you have not read anything any member of such Congress actually said. If you did, you would understand they were clarifying that the common law jus soli rule was our law and such was colorblind. Why not try citing some authority when you made these claims that our contrary to all our scholarship and court decisions. Have you found a single person who has ever said any native born person was ever “naturalized.” Could you not understand the citations i pointed out making clear naturalization could never apply to the native born? Do you just turn off your brain when you read authority that says you are wrong in everything you say?


  211. Komfort,

    The professor doesn’t choose to force people to stay on topic on this site. I personally participated in a massive threadjack that spanned at least 3 threads and consisted of (literally) thousands of comments. If someone is interested enough in the discussion to join it, then you don’t get to tell them what they can or cannot talk about. Given that you are a birther troll who has no intention of engaging in any discussion in good faith (my opinion), you should just be glad that it’s only your ideas that are being shown to be defective rather than your behavior.


  212. “However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there.”

    First of all , the state department does not define citizenship. It determines when it will intervene to protect our citizens. Secondly, “allegiance” is a complicated subject. It can mean one is required to obey traffic laws when travelling abroad, but in the field of public law it means one’s political allegiance,i.e., the ability to draft someone into one’s military, try them for treason or pretect them from all claims of foreign allegiance. Show me the instance when our state department has ever allowed a native born American citizen to be subject to the political allegiance of a foreign power unless they were permantently domiciled in such foreign power. Such has never been the position of our government or any principle we have recognized under public law.


  213. Bob, you should have told Obama in 2007, before he had this written on his website:

    ” 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.

    Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4,1982.”

    I thought it expired when he was 2.

    When do get off the tangent and determine what is dicta in WKA?


  214. …2008…


  215. Slarti and Ballantine:

    Have you ever noticed that when you point out what the Ankeny Court said, that the Vattle Birthers get really quiet???

    Id. at 167-168. Thus, the [Minor] Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.12

    Plus, if that Philo-Publius person really was Kerchner, I bet he was not happy with this Squeeky Smackdown of his attorney:

    La Bocca Della Falsita (The Mouth of Falsehoods)

    http://birtherthinktank.wordpress.com/2011/11/16/la-bocca-della-falsita-the-mouth-of-falsehoods/

    I managed to work Mario Apuzzo’s picture of La Bocca Della Verite into it. I bet he is just LIVID.

    Squeeky Fromm
    Girl Reporter


  216. Dr. Slarti, I agree on the ‘Obama Derangement Syndrome.’ It is so pervasive that I won’t be surprised if it appears in the new edition of DSM-V.

    No known treatment, no known cure, and the duration is known to be for at least the term of office for a Kenyan, socialist, communist, Nazi, liberal, Muslim, Harvard educated guy who had the bad manners to be elected President of the USA by a landslide. And oh yes, did I mention he is Black?


  217. Ballentine, you switched gears and have been nice to me, I appreciate that. Slobberbongfest is a different story. He said the State department does not “recognise” something that, per their own site, they do. Look at the argument, i think you will agree with me. Also, of note, I made no assertion that the Dept of State defined Citizenship. I should not have to be on defense for something I did not say.

    BTW, did I ever say Obama is not natural born? Please research 1 site; the one we are on.


  218. President Obama’s site omits the historical reality of Britain granting Kenya’s independence. The site is otherwise accurate albeit incomplete. Again: Any possible allegiance President Obama had to England expired when he was 2, and any possible allegiance President Obama had to Kenya expired when he was 23 (at the latest).

    As for Wong Kim Ark: What in the court’s rationale suggests that he was a citizen but not a natural-born citizen?


  219. Otteray Scribe:

    You said: I agree on the ‘Obama Derangement Syndrome.’ It is so pervasive that I won’t be surprised if it appears in the new edition of DSM-V.

    Well, “Dr. Squeeky” has already done some preliminary work in that regard. de Vattel Delusion Disorder and Cognitive Decompensation.

    http://birtherthinktank.wordpress.com/2011/10/30/de-vattel-delusion-disorder-a-psychiatric-diagnosis/

    The second one is a few articles later and is a Case Study of a Vattle Birther who tries to use Shakespeare’s Henry V to prove that neither Obama nor Herman Cain were natural born citizens. Really. I am NOT putting you on.

    http://birtherthinktank.wordpress.com/2011/11/11/cognitive-decompensation-when-vattel-birthers-pay-the-piper-a-case-study/

    Squeeky Fromm
    Girl Reporter
    aka Dr. Squeeky


  220. SF, nothing that smacks of conspiracy theories about national figures and celebrities will surprise me any more.


  221. Bob, also I thank you for being nice.

    I am assuming that an opinion chock full of the term “natural born” could have used that term one more time in the direct holding. They did not. I have not seen Nal’s final word on the two terms being made synonymous in a meaningful way. ie, in non-dicta language.

    I am curious too.


  222. Komfort,

    If you’re going to make straw men out of my arguments, please quote them so I can point out the logical fallacies that you are using.

    Squeeky,

    Your article about The Mouth of Falsehoods was interesting. You’re right, Mario better stay away from it… Regarding Ankeny and quieting the Vattelist cult, I’ve found that Madison’s quote (posted above) and referencing the citation of Vattel by the majority in Dred Scott work as well.


  223. I am curious about Nal’s take as well.

    But you didn’t answer my question: What in the court’s rationale supports the notion that Wong Kim Ark was a citizen but not a natural-born citizen?


  224. I will try to be more specific, Bob. So we are on the same page, how inclusive is your take on the rationale of WKA. Is it five pages?

    Will you post a quote of what you see as the entire rationale? I do not want to answer apples to an orange question.


  225. slcraignbc said that because there were no federal laws regulating who was a US citizen at birth prior to the 14th Amendment: “all ‘persons’ born as “citizens’ were necessarily born of a Citizen FATHER, (women being “assumed” as the same citizenship as her husband) and if born to a ‘alien’ father remained as an alien until the Father naturalized or the child reached the age of majority and naturalized in their own right. “

    That is clearly not true, as can be shown by this letter to the editor of the New York Times by the US Secretary of State, William L. Marcy, in 1854. http://query.nytimes.com/mem/archive-free/pdf?res=9B06E2DC153DE034BC4851DFB566838F649FDE (It is a PDF file so I am unable to cut and paste.)

    Secretary of State Marcy was asked by a notary public in a letter to the editor of the Times whether children born of foreign parents in Connecticut and in New York were citizens and if so would the US State Department grant them passports. Marcy replied in another letter to the editor, which appeared in the same edition of the paper (I guess they liked to do that in those days) that not only were both children US citizens, but that they were Natural Born Citizens and eligible to be president.


  226. I am still digesting Ballantine’s argument about the ratio decidendi of WKA being broader than the holding. My post starts off by equating ratio decidendi and holdings, I’m not so sure this is true anymore.

    The best papers on ratio decidendi (especially one by Goodhart) are not available to those of us who don’t have access. :( The first page, which can be viewed on JSTOR) looks like it’s just what I’m looking for.

    Also, ratio decidendi is binding, so I need to reread WKA focusing on the ratio decidendi aspects.

    I also need to determine the difference, if any, between native-born and natural-born citizens, WKA uses both terms.

    Thinking about an analysis of WKA post.


  227. on 1, November 16, 2011 at 3:37 pm Patrick J. Colliano

    Leo Dissembling Donofrio is a liar, plain and simple. Unless he’s an unbelievably incompetent and ignorant lawyer (not to mention, not fluent in English), he knows that the Supreme Court can ONLY create binding precedent on an issue before it. Since there is no distinction between the voting rights of natural born citizens vice naturalized citizens, there is no need for the Supreme Court to create a binding precedent as to the definition of natural born citizen. Virginia Minor was suing for voting rights, NOT trying to run for president. Ergo, there is no need for the Supreme Court to rule on her natural born citizenship.

    I don’t know WHY everyone who keeps bringing this issue up keeps leaving out the very next sentence, since it’s relevant to the discussion, but I’m at the end of my patience. Notice the next sentence: “It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”

    Notice…they are saying that all they need to know, for the purposes of this case, is that those born in the U.S. to citizen parents are CITIZENS! Not “natural born citizens.” Just “citizens.” Of course, they ARE natural born citizens, but for the purposes of this case, all they need establish is that Virginia Minor is a CITIZEN, without regard to what kind of citizen she is.

    As for the citation itself that birthers dishonestly claim RESTRICTS the term “natural born citizen,” only someone who is not fluent in English or a liar would make such a claim. It reads, “…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.”

    Notice it says “these were natives or natural born citizens…” It does NOT say, these were the ONLY natives or ONLY natural born citizens. Anyone who speaks English can tell you that lacking this qualifier, then “natural born citizen” is left often to the possibility that those born in other circumstances might qualify for this distinction. However, since apparently Minor was born in the U.S. to citizen parents, there was no need to settle the question any further. Virginia Minor was a U.S. citizen; that’s all they needed to know.

    Finally, any restriction placed by the Supreme Court on the definition of the term “natural born citizen” would be unconstitutional. The power to define the terms of citizenship belongs to Congress and Congress alone.

    Article I, section 8, clause 4 of the Constitution makes plain that the “Power To establish an uniform Rule of Naturalization” is strictly the function of Congress; there is no provision in the Constitution for either of the other branches to share in this function.

    And does defining natural born citizenship belong under this function? The Supreme Court in Minor v. Happersett says it did:

    “Under the power to adopt a uniform system of naturalization Congress, as early as 1790, provided ‘that any alien, being a free white person,’ might be admitted as a citizen of the United States…and that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens.”

    Notice that last sentence. Congress is extending natural born citizenship to those born OUTSIDE the U.S. to citizen parents. Yes, the Naturalization Act of 1790 was superseded five years later by a different Act that didn’t use the term “natural born citizen,” but that doesn’t matter. SCOTUS when citing this law is NOT declaring it “unconstitutional.” On the contrary, they recognize this Act as under Congress’s “power to adopt a uniform system of naturalization,” including the portion of the Act that extended natural born citizenship to those born OUTSIDE the U.S.

    The idea that Minor defined natural born citizenship fails so ignominiously under any type of scrutiny — linguistic, Constitutional, contextual — that it becomes impossible to believe that anyone who makes this claim could be only guilty of misunderstanding, and not deliberate mendacity.

    Simply put, birthers who claim this are not “mistaken” or “misinformed.” They are LIARS!


  228. Ellen:

    That is a great letter, and I saved a copy of it. There was no federal law because the issue was a matter of common law. What the Vattle Birthers do not get, is that the 14th Amendment moved this birthright natura born citizenship from common law, and from the 1866 Civil Rights Act to the 14th Amendment, where it would be safer and better protected. Much the same way the Bill of Rights did with many common law rights. From Wong Kim Ark:

    From Section V of Wong Kim Ark:

    The same Congress, shortly afterwards, evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent Congress, framed the Fourteenth Amendment of the Constitution, and, on June 16, 1866, by joint resolution, proposed it to the legislatures of the several States, and on July 28, 1868, the Secretary of State issued a proclamation showing it to have been ratified by the legislatures of the requisite number of States. 14 Stat. 358; 1 Stat. 708.

    Squeeky Fromm
    Girl Reporter


  229. OS,

    It’s the sheer size of the ODS epidemic that’s disheartening–the only ones I see attacking President Obama based on the reality of what he has or hasn’t done are the left–everyone else (who opposes President Obama politically) has either bought into the copious right-wing propaganda or seems to be content not to denounce it because it helps their “side”. It’s easy to inoculate people against birtherism with facts (because the movement lacks both merit and competence [as well as class and a sense of shame]), but how do you fight all of the talking heads calling President Obama “communist”?

    Komfort,

    The fact remains that the US is not going to treat someone they consider one of their citizens as a foreign national–regardless of what passport they hold.


  230. Many have a thorough misunderstanding of “citizen” and “natural born citizen” that was ESTABLISHED as LAW by the STATUTORY CONSTRUCTION of the Constitution.

    The only difference, insofar as CONSTITUTIONAL LAW is concerned, is whether or not a “person” is in conformity with the circumstances requisite of being a natural born Citizen for the purpose of “eligibility” for the Executive Offices.

    At the time of the writing of the Constitution the States had been in the practice of independently determining who were their citizens and upon the Adoption of the Constitution it fell on the Congress to make an uniform Rule of naturalization.

    Given that the Founders did NOT deem themselves as if natural born Citizens it is obvious that it was considered as an anticipated form a Citizenship occurring naturally by the course of events between a husband and wife who were Citizens themselves, (foundlings and bastards being considered within the naturalization laws separately in due course),

    That understanding is expressed in whole in the 14th when it is said that all persons born or naturalized are citizens and there it stops and does not broach the form of Citizenship expressed in A2S1C5, who are natural born Citizens by virtue of the circumstances understood by the Founders, persons born of Citizen parents, women obtaining the Citizenship of the husband upon marriage,

    The Law is NOT a self reconciling system. The FACT that NO laws have been promulgated to reconcile the independence of a women’s citizenship from that of a husband does NOT modify the historical and Constitutional definition of natural born Citizen.

    The 1st Naturalization Act of Congress should give you a CLUE, a person born of Citizen PARENTS while abroad shall be CONSIDERED a natural born Citizen. In other words, as if they were not abroad. The 1795 repeal and rewording is the 2nd Clue, that along with jus sanguinis, jus soli is a requisite circumstance of being a natural born Citizen for Constitutional purposes.

    But it doesn’t fit your template of fundamental change so go on and continue to ignore the guaranteed Republican form of Guv’mnt under the Constitutional Rule of Law and cling to your hope & change in the chaos of public policy derived from pure democracy and I’ll watch as your chickens come home to roost.


  231. Komfort,

    Since you are looking for what is dicta and what is holding in WKA, you need only look to Leo Donofrio’s statement above from the Ogilvie Et Al., Minors v. United States, 519 U.S. 79 (1996).

    “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.”

    Leo has used this statement as support for the belief that the Minor opinion on the term natural born citizen is not dicta. That Justice Waite defined the term as “an “independent” ground in support of our decision” and the term is therefore not dicta.

    But this same argument can be made in WKA. When Justice Gray writes,

    “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, and 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.”

    “III. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.”

    This reason is an “independent ground in support” of the decision and is therefore not dicta.


  232. Patrick,

    Well said.

    Not all birthers are liars, though (although I agree with what you said about Leo–any birther lawyer is either dishonest or incompetent [Sorry Leo, sometimes the truth hurts... ;-)]), some of them are stupid and/or willfully ignorant due to confirmation biases that can sustain cognitive dissonance of biblical proportions. The one universal characteristic of birthers (in my opinion) is their bigotry against President Obama.

    As an example, consider the latest post by slcraignbc. Clearly this person is unable to understand the law (whether due to lack of intelligence or willful ignorance–my guess is both), but I think he believes the crap he is spewing (and I doubt you could get him to say a single positive thing about President Obama…).


  233. “Many have a thorough misunderstanding of “citizen” and “natural born citizen” that was ESTABLISHED as LAW by the STATUTORY CONSTRUCTION of the Constitution.”

    Where did you learn to write? You really make no sense.

    “The only difference, insofar as CONSTITUTIONAL LAW is concerned, is whether or not a “person” is in conformity with the circumstances requisite of being a natural born Citizen for the purpose of “eligibility” for the Executive Offices.”

    No, legal authorities decreibed two types of citizens, natural born and naturalized, when they were not talking about eligiblity.

    “At the time of the writing of the Constitution the States had been in the practice of independently determining who were their citizens and upon the Adoption of the Constitution it fell on the Congress to make an uniform Rule of naturalization.”

    Such is true. However, naturalization only applied to foreign born aliens. There was a debate that continued up until the 14th Amendment whether the states could define native born citizenship or whether the common law definition was incorporated into the Constitution. The latter position would prevail.

    “Given that the Founders did NOT deem themselves as if natural born Citizens it is obvious that it was considered as an anticipated form a Citizenship occurring naturally by the course of events between a husband and wife who were Citizens themselves, (foundlings and bastards being considered within the naturalization laws separately in due course),”

    Makes no sense at all. The founders did consider themselves natural born citizen and no one said citizen parents were required. You do realize that making assertions that you can’t back up with any authority is not going to convence anyone.

    “The 1st Naturalization Act of Congress should give you a CLUE, a person born of Citizen PARENTS while abroad shall be CONSIDERED a natural born Citizen. In other words, as if they were not abroad. The 1795 repeal and rewording is the 2nd Clue, that along with jus sanguinis, jus soli is a requisite circumstance of being a natural born Citizen for Constitutional purposes.”

    Again, you make no sense. The 1790 statute was merely copying English statutes which bestowed “natural born” status on foreign born British subjects for all intents and purposes. Nothing about these statutes changed the English common law rule for the native born and nothing about our naturlaization statutes changed the common law rule for our native born. According to the Supreme Court:

    “So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent Com. 39, 50, 53, 258 note; Lynch v. Clarke, 1 Sandf.Ch. 583, 659; Ludlam v. Ludlam, 26 N.Y. 356, 371″

    I know, you, a non-lawyer who cannot cite any legal authority to support your position, are right and the Supreme Court is wrong.


  234. Gorefan, I am appreciative that you are being fair to me. I am here for the topic at hand, despite the smears.

    Does that mean that if Donofrio is right about Ogilvie, both Minor and WKA are affected by that decision? Or is it one and not the other?


  235. Bob, have you located the exact quote yet?


  236. Is this an easter egg hunt? Am I supposed to find what you think the rationale of Wong Kim Ark is? Wouldn’t it be easier for you to state what you think the rationale of Wong Kim Ark is?


  237. Bob:

    Good luck with Kontort. I have tried on many occasions to get a Vattle Birther to analyze Wong Kim Ark, briefly, by section. No luck.

    They are afraid of the case. That is why they run back in time to Minor v. Happersett. It is in their blood. It is instinctual, like a cat hissing at a dog. In the Ankeny case, the Vattle Birthers completely ignored WKA:

    The Plaintiffs do not mention the above United States Supreme Court authority [WKA] in their complaint or brief; they primarily rely instead on an eighteenth century treatise and quotations of Members of Congress made during the nineteenth century. To the extent that these authorities conflict with the United States Supreme Court‟s interpretation of what it means to be a natural born citizen, we believe that the Plaintiffs‟ arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true when reviewing the grant of a motion to dismiss for failure to state a claim.

    Squeeky Fromm
    Girl Reporter


  238. Bob, be fair. Three times you have asked the same question. It is your question. It is your interpretation of the “rationale” that your question is based on. I never posed the question.

    It most certainly would not be easier, or wise, for me to guess at the basis of another’s question. Please do not shift like that again: it is obvious when you do. Does your question have a foundation of not?


  239. Come on Queefy, you cannot point to any statement I have made here that claims Obama is anything less than a natural born citizen. I am looking at a group that is having so much trouble proving dicta is holding, the site host, who is being a helluv a lot more fair than you guys, is now looking to “pay sites” to reach a conclusion.

    Why don’t you and BFF post the 2 or 3 sites for Nal, so he can shorten his search?

    The topic is dicta.


  240. Kontort:

    Read my stuff above. I have even provided a Motion for Reconsideration which sets forth my rationale why the language is NOT dicta. As far as PROVING that ALLEGED dicta is holding, I simply refer you once more to Ankeny v. Governor:

    http://birtherthinktank.wordpress.com/the-case-the-two-citizen-parent-birthers-just-hate/

    Read that, and notice how much comes from Wong Kim Ark. I have been madly googling for “The International Court of Dicta”, “The Dicta Police”, Dicta for Dummies”, and “ANSI Standards for Dicta” without any success.

    Sooo, I am going with the 3 appeals court level judges citing the language.

    Squeeky Fromm
    Girl Reporter


  241. I repeat the same question because you do not answer a straightforward question in a straightforward manner. So here’s another:

    In Ankeny, the Indiana Court of Appeals analyzes Wong Kim Ark, and from that analysis, concludes the appellant failed to state a claim because under Wong Kim Ark birth in the United States is sufficient for natural-born citizenship.

    Did the Ankeny err in its reading of Wong Kim Ark‘s rationale? If so, how?

    The Ankeny decision:

    http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf


  242. Komfort,

    “Or is it one and not the other?”

    If Leo is right then Minor was precedent that was overturned by WKA.


  243. A whole thread string is dedicated, with the exception of the insults and unwarranted birther accusations, to distinguishing dicta from holding.

    You ask a question that is based on controversial statements in WKA. (I say controversial because we have not seen Nal’s conclusion.)

    You cannot point to what you believe is in fact the rationale, so I am supposed to set myself up for the tear down by making up your mind for you?. You say it is there, show it.

    Queefy, are you speaking for Bob? Bob, is Queefy speaking for you?

    Bob, is the entirety of the “rationale” in WKA the quoted material in Aneky? Or will there be more after I look into Aneky?

    In The Longest Yard a play like that would be called “incidental damage after the ball has been blown dead.” So please commit.


  244. …Ankeny…


  245. Gorefan, I like that!

    Let me stew on it, though.


  246. “If Leo is right then Minor was precedent that was overturned by WKA.”

    Interesting…So what part of the holding will be overturned?

    Anyway, can’t wait for Nal’s conclusion on WKA.


  247. Patrick J. Colliano

    “Virginia Minor was suing for voting rights, NOT trying to run for president. Ergo, there is no need for the Supreme Court to rule on her natural born citizenship.”

    The Court established Mrs. Minor’s citizenship by defining the “class” of natural born citizens as those born in the U.S. to parents who were citizens. By recognizing Mrs. Minor as a member of the class of persons who were natural born citizens, the Court deemed her a U.S. citizen. Establishing her citizenship was required before they could address the issue of whether Mrs. Minor had the right to vote.


  248. “Establishing her citizenship was required before they could address the issue of whether Mrs. Minor had the right to vote.”

    Nonsence. The Missouri Supreme Court addressed the same question and didn’t establish here citizenship. It simply noted that her citizenship was conceded by defendant nad hence was not at issue. There are a multitude of cases where the question before the court was whether a citizen had a certain right or not. Unless citizenship was contested and the court decided to address the citizenship issue, the question of citizenship was not before the Court. In Hamdi v. Rumsfled the question was whether a citizen could be detained as an enemy combatant. Under your logic, the court would have had to determine if Hamdi was a citizen before address the detention issue. However, since the government did not contest his citizenship, the court did not address citizenship simply presuming he was a citizen and proceeding to answer the question on detention which is the question the court agreed to review. No court needs to address conceded issues not put before it.


  249. Kontort:

    Mr. Soros says in the paper I signed that I am a “Independent Contractor” and I guess that is true for the rest of us, too. I have to Indemnify him or something, and not tell anybody about the Contract. Which on page 17 it says just the opposite “Nothing herein shall be construed as a contract between the parties.” Plus, the Venue is someplace called Astana, Khazakhstan which I guess is in Kansas???

    Sooo, I am guessing we each speak for ourselves. Now what exactly is it that you want???

    Squeeky Fromm
    Girl Reporter


  250. The Ankeny court cited pages 653 through 663 of volume 169 of United States Reporter. In doing so: the Ankeny court, in essence, restated Wong Kim Ark: The phrase “natural-born citizen” is not defined by the U.S. Constitution; the U.S. Supreme Court therefore looked to English Common Law to determine its meaning; doing so revealed that a natural-born subject was someone born in the England; therefore, someone born in the United States was a natural-born citizen; because Wong Kim Ark was a natural-born citizen under the U.S. Constitution, he necessarily also was a U.S. citizen; the law preventing him from becoming a U.S. citizen was accordingly unconstitutional.

    The Ankeny concluded by ruling if President Obama was born in the United States, then he therefore is a natural-born citizen. Because President Obama is a natural-born citizen, appellants failed to state a claim in its suit.


  251. Some interesting quotes from the Ankeny decision:

    Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, …

    Key word: “guidance”

    To the extent
    that these authorities conflict with the United States Supreme Court‟s interpretation of what it means to be a natural born citizen, …

    Key word: “interpretation”

    Nowhere does the Court of Appeals for Indiana claim that they’re following a binding precedent. The court does not use the word “holding” to describe any of WKA’s citations.

    Just saying.


  252. “If Leo is right then Minor was precedent that was overturned by WKA.”

    Interesting…So what part of the holding will be overturned?

    Anyway, can’t wait for Nal’s conclusion on WKA.”

    Leo can only be right that Minor was precedent with repsect to native born children of citizens being natural born. There is no way on earth anything Minor said about native born children of aliens can be precedent as Justice Waite expressly tells us the status of such persons were not before the court and there is really no way to pretend that they were. Of course, Minor says nothing about children of aliens except someone, somewhere had some doubt about their citizenship without telling us what those doubts were or what kind of citizenship it was talking about. Again, it is hard to believe that on the subject of citizenship of children of aliens, people cite a case that expressly declines to address the status of children of aliens.


  253. I will add this. If so much of the WKA opinion was rationale, and it is so convincing that even a caveman should understand it, why did this get removed from the original “fight the Smears website, and get replaced with what I posted earlier for Bob?

    “Lie:
    Obama Is Not a Natural Born Citizen
    Truth:
    Senator Obama was born in Hawaii in 1961, after it became a state on August 21st, 1959. Obama became a citizen at birth under the first section of the 14th Amendment
    “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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” “

    They should have left that statement in force and provided the rationale. After all it is a lawyer running for President.
    I wonder why they changed it?


  254. “Nowhere does the Court of Appeals for Indiana claim that they’re following a binding precedent. The court does not use the word “holding” to describe any of WKA’s citations.

    Just saying.”

    Such is true. Ankeny does no analysis on whether Minor or Wong Kim Ark are dicta or precedent. Probably because lower courts follow Supreme Court dicta like it is precedent.


  255. “I will add this. If so much of the WKA opinion was rationale, and it is so convincing that even a caveman should understand it, why did this get removed from the original “fight the Smears website, and get replaced with what I posted earlier for Bob?”

    Do you really think Obama or a Constitutional scholar was editing his website?


  256. Nal:

    You may find this of interest. It is an 8 page article from the American Law Review of 1898 concerning Wonk Kim Ark.

    http://books.google.com/books?pg=PA555&lpg=PA555&dq=law+review+articles+wong+kim+ark&id=_kgZAAAAYAAJ&ots=0VY-iUaXIu#v=onepage&q=law%20review%20articles%20wong%20kim%20ark&f=false

    I did an Internet Article on it.

    Squeeky Fromm
    Girl Reporter

    PLUS: I think you can pick “Plain Text” on this one, and then you can cut and paste. Being this close in time to the decision, it may give you some extra perspective.

    Squeeky Fromm
    Girl Reporter


  257. So, it does not raise the question of why they would change it?

    Do you think they wrote that without the advice of a Constitutional scholar?


  258. NAL:

    Here is what I was taking about earlier about determining the meaning of natural born citizenship being necessary to the 14th Amendment considerations.

    “While the question before the Supreme Court was, what constitutes citizenship of the United States under the Fourteenth Amendment, still the peculiar phraseology of the citizenship clause of that Amendment necessarily involved the further and controlling proposition as to what that clause was declaratory of; whether it was intended to be declaratory of the common-law or of the international doctrine.”

    Of course the “common law” was natural born citizenship.

    Squeeky Fromm
    Girl Reporter


  259. Your questions would be better directed at someone who had worked for Obama.

    Wong Kim Ark‘s rationale has been repeatedly explained; how did the U.S. Supreme Court get it wrong?


  260. @Nal:

    Courts interpret; it is what they do. When the U.S. Supreme Court “interprets” the U.S. Constitution to mean something, that interpretation is the (binding) law of the land.


  261. Someone doesn’t seem to understand the WKA decision, even after it has been explained to her in detail several times. Justice Gray respected and upheld the NBC definition used in Minor. He noted that when construing the citizen clause of the 14th amendment, the Constitution does NOT say who shall be NBCs. IOW, this is a clear declaration that NBC is NOT defined by the 14th amendment. Later, it notes that the SCOTUS UNANIMOUSLY excluded children born of citizen parents from the citizen clause of the 14th amendment. It AFFIRMS that V. Minor was found to be a citizen by virtue of BOTH jus soli and jus sanguinis criteria (which wouldn’t be necessary unless the court was upholding the NBC definition).

    The Lynch case was ONLY cited as an example of birth citizenship being tied to a common law definition (Gray ignored that Lynch opined that anyone born in the country could be eligible for president). The binding common-law case that Gray did cite was dependent on the allegiance of the parents and noted that children born in the country could be EITHER U.S. citizens OR natural born subjects of Great Britain. Under that ruling, Obama is a natural born subject, not a U.S. citizen. These common law examples were cited to give the 14th amendment teeth so that it could justify overriding an international treaty. Gray’s last citation of the term natural-born citizen in the WKA decision is where it cited the definition of NBC from Minor that nearly matches Vattel’s definition word-for-word.

    The Ankeny decision, as was also explained to this person, errs and contradicts itself by noting that the so-called guidance it was relying on from WJA was not actually followed in the WKA decision itself since it never declared WKA to be a natural-born citizen. Ankeny quotes WKA’s citation of Minor in saying that the 14th amendment doesn’t say who shall be natural-born citizens. It contradicts itself in one section saying that Minor leaves open the question for children born of alien parents, but then says it contemplates scenarios where both parents are aliens. How exactly does it leave a question open that it contemplated?? The Indiana Appeals Court was an ignorant embarrassment. They downplay Vattel as nothing more than an 18th century treatise. They cite a passage from WKA saying NBC 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,” and yet they turn around and call the original intent of the authors of the 14th amendment as “various citations to nineteenth century congressional debate,” as if it has no value.

    Fortunately, we all know that Ankeny doesn’t overrule the Supreme Court in Minor or in Wong Kim Ark, which eloquently and exclusively characterized the children born in the country to citizen parents as natural-born citizens.


  262. @Philo Publius

    “The Court established Mrs. Minor’s citizenship by defining THE “class” of natural born citizens as those born in the U.S. to parents who were citizens. By recognizing Mrs. Minor as a member of THE class of persons who were natural born citizens, the Court deemed her a U.S. citizen. Establishing her citizenship was required before they could address the issue of whether Mrs. Minor had the right to vote.”

    Not so fast my friend. The court may have defined A class of natural born citizens in Minor but it did not rule out the possibility that another class existed. The Court in the WKA ruling defined the NBC population was larger than the class of citizens born of citizens.


  263. So now we are goimg to speculate on who changed a website and what qualifications they had as constitutional scholar? Getting pretty silly. No one took the Vattel bs seriously back then . In fact, I bet no one connected with the campaign even knew someone was making such a claim if in fact the birthers had made it yet.


  264. ksdb:

    You said:Later, it notes that the SCOTUS UNANIMOUSLY excluded children born of citizen parents from the citizen clause of the 14th amendment.

    OH, this looks like a familiar argument. That the 14th Amendment does not include people born in the United States of two citizen parents. This is common among the Sovereign Citizen crowd. (and one particular Vattle Birther I know).

    I guess next the Henry V Vatte Birther will show up.

    Squeeky Fromm
    Girl Reporter


  265. Sorry KSDB your BS won’t work here. If you don’t understand that WKA only cited Minor to show that rhe Minor court was not committed to a view on the citizenship of children of aliens since Minor punted on such issue, you have shown you have no clue as to how to read case law.


  266. But since we’re speculating: Why is it that only birthers commented on this change on the campaign site?


  267. Sorry I mentioned it. I just wonder why, with the obvious rationale presented here, they did not stick with it.


  268. Not just birthers, Bob.


  269. Mrjr101

    “Interesting…So what part of the holding will be overturned?”

    I can answer that but first answer a question for me.

    Does the Minor decision limit the class of natural born citizens to those born in the country to two citizen parents?


  270. And neither WKA nor any court has ever excluded children of citizen parents from the 14th amendment. Seriously, why do people with no understanding of law pretend they are scholars on the internet. Squeeky os right, this is sovereoign cotizenship bs.


  271. ksdb

    What is your interpretation of this statement from the WKA decision?

    “His [foreigner] allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ ”


  272. Squeaky, the fact that your comments quickly degenerate into name calling because someone disagrees with your stance demonstrates immaturity and weakness. Any hope you had in convincing me that your point of view is the correct one was completely destroyed by your own actions and any consideration I would have given your blog is now lost.


  273. The only sites that comment on the change at the campaign site are birther sites. Funny that.

    Also, the original rationale invited the argument that President Obama was a citizen but not a natural-born citizen (as the 14th Amendment does not use that modifier).


  274. EW: What name calling do you object to, specifically.

    Squeeky Fromm
    Girl Reporter


  275. Bob, what?

    I am trying to understand what you just wrote. Are you saying they wanted to avoid the 14th amendment discussion?


  276. How about asking Squeaky why she chose the name of a Murderer for her online persona?

    How about it it Squeaky?


  277. The campaign site’s original verbiage invites this type of response: “The 14th Amendment refers to citizens, not natural-born citizens. Because he doesn’t say he’s a natural-born citizen, he knows he isn’t one!”


  278. Who cares? He has the court on his side. Right?

    To the people who weren’t going to vote for him this would mean nothing to them, they already had their arguments. It only deceives the people who looked to him for honest interpretation of his situation.


  279. Both the original verbiage and later verbiage were honest (and correct).


  280. Philo-Publius obviously forgot to mentioned that his attorney lost the case where they espoused their theory on the definition of NBC and Apuzzo was sanctioned to boot.


  281. Fred Muggs:

    Was Apuzzo really sanctioned??? How much did he have to pay? Do you have a link?

    Thanks!

    Squeeky Fromm
    Girl Reporter


  282. @ Squeeky F.

    In Kerchner v Obama the Third Circuit was going to force Apuzzo to pay costs because he failed to cite Berg’s case in his appeal. Kerchner’s case was Berg redux with a dash of de Vattel and the court was wise to them. Not citing Berg was extremely arrogant and unethical. Apuzzo was able to argue his way out of monetary sanctions but the reprimand stood.


  283. Couple of recent items

    Taitz said she received calls on Tuesday from two Republican state representatives from New Hampshire, Harry Accornero and Larry Rappoport, to say they are joining her in her elections challenge of Obama in New Hampshire. According to Taitz, they have forwarded her complaint to other legislators, asking them to join.

    Sonoran News learned late Wednesday afternoon that the Ballot Law Commission will review Taitz’s complaint seeking removal of Obama from the New Hampshire primary ballot at 2 p.m. this Friday, Nov. 18.

    http://www.sonorannews.com/archives/2011/111116/frontpage-storm.html


  284. This is the original order from the 3 judge panel in the Third Circuit: http://www.scribd.com/doc/33824651/KERCHNER-v-OBAMA-Precedential-Opinion-Transport-Room From the order:

    “Because we have decided that this appeal is frivolous, we
    will order counsel for Appellants to show cause why just
    damages and costs should not be imposed. Federal Rule of
    Appellate Procedure 38 provides that “[i]f a court of appeals
    determines that an appeal is frivolous, it may, after a separately
    filed motion or notice from the court and reasonable opportunity
    to respond, award just damages and single or double costs to the
    appellee.” “The purpose of an award of attorneys’ fees under
    Rule 38 is to compensate appellees who are forced to defend
    judgments awarded them in the trial court from appeals that are
    wholly without merit, and to preserve the appellate court calendar for cases worthy of consideration.” Huck v. Dawson,
    106 F.3d 45, 52 (3d Cir. 1997) (internal quotation and citation
    omitted)..”

    As mentioned, Apuzzo was able to grovel his way out of paying monetary sanctions.


  285. Gorefan et al;

    Your clinging to WKA and the English Statutory Law of subject-hood and naturalization is instructive of your disdain for the Constitution and the Laws promulgated under its authority. The same disdain that Justice Gray displayed when he dismissed the Burlingame Treaty as not controlling of the Ark parents and their prodigy. Article VI of that Treaty, which was passed and signed and by operation of Constitutional Law attached to the Constitution for the purposes contained therein, clearly states that no person covered under the Treaty shall be eligible to naturalize to the host country. By virtue of the Treaty there were Constitutional limits on the “benefits” available to the Ark’s. But with disdain for all things American Justice Gray sought the Lord Coke and Blackstone rather than Joseph Story of Taney.

    The Scott v Sandford Opinion, although highly vilified, followed the Construction of AMERICAN STATUTORY LAW, (rather the the English), which not only paved the way for the Civil War, but also for the 13th and 14th Amendments. Yes, an Amendment was necessary to provide ‘citizenship’ to persons previously denied the benefit, through the Collective naturalization provision of the declaratory born statement.

    Scott v. Sandford () 100 U.S. 1

    It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.

    I want to repeat the last sentence of the passage posted;

    The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.

    Now to the point of citing a case that I’m sure makes your head spin, nevertheless the Court Ruled on the LAW as it then existed, without the aid of Lord Pepsie or Blackrock and looked only at the Laws emanating from the Constitution and cases adjudicated under the Rule of Constitutional law,

    …so we find this;

    It is true, every person, and every class and description of persons who were, at the time of the adoption of the Constitution, recognised as citizens in the several States became also citizens of this new political body, but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State [p407] which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.

    “Birthright or otherwise”, i.e., “naturalization”.

    Yet still no one can show me the PROMULGATED LAW that provides for Jus Soli, pre 14th, as would be applied to an alien foreign national nor any words in the 14th. or words that require the the enlargement, abridgement and or other modification of the exclusionary provision of the prerequisite imperative requirement of being a natural born Citizen, being the birthright prerogative of Citizen parents.

    I’m still looking for all the English Statutory Law that Gray cited and find none of it in the debates on the 14th or any semblance of it in the language of the Amendment its-self which leaves me curious if Gray was attempting to make whole cloth or to dislodge something from upon what he was sitting.


  286. Where do they post the non-monetary sanctions?


  287. slcraigbnc:

    You asked: Yet still no one can show me the PROMULGATED LAW that provides for Jus Soli, pre 14th,

    Answer: It was NOT promulgated law. It was English common law brought to America. Read Wong Kim Ark. 1898. You can find it above.

    Read Lynch v. Clarke, 1844. I won’t keep cutting and pasting for you. It is above.

    Squeeky Fromm
    Girl Reporter


  288. gorefan said:

    “I can answer that but first answer a question for me.

    Does the Minor decision limit the class of natural born citizens to those born in the country to two citizen parents?”

    Ok, sure, I’ll give you a pass even though I asked first. Why not.

    It is an affirmative definition of that class per A2S1C5.

    Would you like to share what part of the holding would be overruled if Leo’s argument holds true?


  289. English common law controlled McCain’s birth status.


  290. Komfort,

    So that means that A2S1C5, 14A, controlled McCain’s birth status also? Or not?


  291. Tough to say. Natural born subject is synonymous with natural born citizen except when it is not synonymous. Leave it to the Brits.


  292. MvH:

    “The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.”

    “There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are expressly declared to be “citizens of the United States and of the State wherein they reside.””

    The very next sentence with emphasis added, “But, IN OUR OPINION, it did not need this amendment to give them that position.”

    Hmm…didn’t need the 14th to determine her citizenship. Interesting, no? And how does the court go about defining her citizenship which is integral to answering the question before the court (see first paragraph)?

    Gee, it shouldn’t be a surprise that later courts would hark back to this particular citizenship holding (i.e. RE Lockwood and WKA).


  293. So we don’t know if McCain fit into WKA’s guidance?


  294. mrjr101,

    MvH with emphasis added;

    “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. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [p168] parents.AS TO THIS CLASS THERE HAVE BEEN DOUBTS, but never as to the first. FOR THE PURPOSE 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.”

    1. The court affirmed and defined a class of citizenship (A2) that was doubtless.

    2. If this is a valid holding, then SEN McCain fails in his eligibility for presidential office due to his foreign birth (i.e. “all children born in a country”).

    4. The MvH court could have lumped 14th “born” with A2 “natural born” and remarkably regarded them as separate and distinct by not doing so.

    4. Incidentally, hopefully it is noted that WKA specifically and solely referenced the 14th in its consideration of what class of citizen is considered “born” without overruling the opinion of the earlier MvH.

    5. “For the purpose of this case” and “sufficient” emphasis is noted with regard that Minor was born in United States to parents who were American citizens and undoubtedly a citizen entitled to certain rights.


  295. I was wondering If McCain status is or isn’t controlled by the 14th A or A2S1C5 (Well Established English Common-Law in it’s root). If so, then McCain would be deemed a “natural born subject” by operation of which principle?


  296. mrjr101,

    He was born a citizen by naturalization statute. A power granted by the constitution to the congress.


  297. Tribe and Olson wrote that Wong Kim Ark explains the sources that may be referenced when defining terms not expressly defined in the U.S. Constitution: the context in which those terms are used; statutes enacted by the First Congress; and the common law at the time of the founding (i.e., English Common Law).

    After examining those sources, they concluded McCain was a natural-born citizen (and, implicitedly, President Obama as well).


  298. bob, perhaps Tribe and Olson were wrong in their analysis. What do you believe to be true?


  299. Congress can only make law with regard to Naturalization. A Natural Born citizen needs no statute, and needs no investigation.

    Natural Born Citizenship means there is no question… there is only one potential citizenship for such a person. there is no need to question the birth circumstances of such a person, there are no questions to ask.

    For a person not born to two parent citizens, or born in a place other than their nation, there are questions. This person is a citizen by statute – and potentially affected by new or changed laws coming from congress, but not by birth.

    It isn’t rocket science. If the question has to be asked, then there is something to question. If there is something to question, then there must be an investigation of one sort or another, and this starts to run into the realm of the subjective, rather than an objective observation which would state simply, this person cannot have any citizenship other than this one.

    That is what Natural Born means. Naturally that person is born with one citizenship… Naturally, there is no need for explanation or justification. Naturally there can be only the one.

    It isn’t rocket science. MvH is clear.

    Though if you listen to Squeaky et. al. then it takes some form of obscure algebra to get to a definition. Which is of course confusing. But then THAT is her objective, to confuse and distract.


  300. I tend to believe two prominent attorneys with exceptional careers more than some anonymous nonexpert who often spells the name of the case M – I – N – E -R.

    But that’s just me.


  301. bob, no doubt the academicians are renown and to be respected…I was curious as to your personal thoughts on the matter.


  302. Lexisnexis spelled it M-i-n-e-r in Re Lockwood. Did you expect that?


  303. I know it was just a memo, Bob, but does the Obama language within the memo fit the dicta template Nal based this thread on? ( assuming the memo was an opinion of the court, of course)


  304. slcraignbc

    “Your clinging to WKA and the English Statutory Law of subject-hood and naturalization is instructive of your disdain for the Constitution and the Laws promulgated under its authority.”

    Even the Founders used the term subjects in their rightings. The Delaware Legislature as late as 1788 and the Massachusett’s legislature as late as 1791 were passing acts of Naturalization that gave foreign born immigrants the same rights as “natural born subjects”. And the future Chief Justice of the Connecticutt Supreme Court wrote in 1795 that,

    “The children of aliens born in this state are considerded as natural born subjects and have the same rights with the rest of the citizens.“

    Did all these members of the Founding Generation have disdain for the Constitution or did they just use both terms interchangeably?


  305. Danae:

    You said: Though if you listen to Squeaky et. al. then it takes some form of obscure algebra to get to a definition. Which is of course confusing. But then THAT is her objective, to confuse and distract.

    Actually, my way is real simple. Doubts means doubts, no doubt about it. Plus, haven’t you read the Alphabet Book yet??? Here is a video you can probably fit into your busy schedule:

    This will probably help you with your spelling!

    Squeeky Fromm
    Girl Reporter


  306. Danae,

    You’re just playa hatin’ on Squeeky because she’s got the goods on you (as do about a dozen other posters here–but most of them are polite when they utterly devastate your ideas). You birthers really crack me up–you pretend that you are making an erudite argument about legal arcana while at the same time demonstrating that you don’t know the difference between “if A then B” and “if not A then not B”. I think that this is a pretty good indicator of the quality of your understanding. I’d ask you what you thought, but…

    Bdaman,

    That’s awesome news! I don’t know of any bigger publicity whores (we used to call them “TV sluts” back in Cameron Indoor… [WAY TO GO COACH K! #903! GO DEVILS]) than Dr. Orly Taitz, esquire (who is not, to the best of my knowledge, currently disbarred). I hope Orly can drum up a big ol’ spotlight for this one. If she’s correct about New Hampshire law and gets standing, she might just be able to get to arguments and present her ‘zibits to a judge! You are aware that Orly has been posting President Obama’s (likely) former social security number all over the interwebs and that it was fraudulently obtained, right? Perhaps one of the lawyers here might enlighten us as to what would be likely to happen if an attorney stuck the fraudulently obtained social security number of the president (which she has proven completely unable to correctly redact) in front of a judge and demanded they recognize it. I bet it will be fun (Orly never disappoints! [unless you're a birther])–especially if there is video from the courtroom!

    Hope your mom is well.


  307. Komfort

    “English common law controlled McCain’s birth status.”

    Not strictly true. English Common Law controlled those born in the realm. English Statutory Law controlled children born to English subjects outside the realm.

    Blackstone summed it up this way,

    “THE children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such” (Common Law)

    “But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes” (English Statutory Law)

    And this is where the term “natural born Citizen” is normally debated. Did the Framers (who were aware of the two sets of Law) intend for the term to be enclusive of both concepts (Common and Statutory Laws) or did they intend the more narrow meaning (Common law)?

    Just before the Constitutional Convention ended, Alexander Hamilton presented to James Madison a draft constitution. It did not have the term “natural born Citizen” instead it used the term “born a Citizen”. This might mean that Hamilton understood the Constitution to be using the more narrow definition.

    Hamilton did tell us where to look for the definition of terms used in the Constitution. In a legal brief on Carriage Taxes, he wrote,

    “where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived.”


  308. Mrjr101

    You answered the question.

    If Leo (in his use of Ogilvie Et Al., Minors v. United States, 519 U.S. 79 (1996)) is right than the Minor decision limited the class of citizens known as “natural born”. However the later WKA decision widened that definition to include the children of aliens born in the United States.

    As explained in this passage from the WKA decision:

    “His [foreigner] allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ ”

    A child born in the United States of non-citizen parents is natural-born and “as much a citizen as the natural-born child of a citizen”.


  309. Ok, so, it is not always English Common Law to interpret the provisions of the Constitution in regards to NBC. I thought that Justice Gray told us to that we needed to look at the English Common Law.


  310. gorefan, very interesting quote you gave us by Hamilton. In light of such consider the following from Tonchen’s blog;

    “Timothy Cunningham’s Law Dictionary (1771) was the only law dictionary that James Madison ordered for the Continental Congress. It was one of the most popular comprehensive English dictionaries of the late eighteenth century, and was found in many personal libraries, including those of Thomas Jefferson and John Adams. It was contemporaneously used by various American Supreme Courts for clarification of legal terms. (Berry, pp.347-8).

    Under the “Aliens” section of his Law Dictionary, Cunningham defined “natural-born subject” as one who is born within the king’s realm, of parents who are under the king’s “actual obedience”:

    All those are natural born subjects, whose parents, at the time of their birth, were under the actual obedience of our king, and whose place of birth was within his dominions. (Cunningham, p.95, in section entitled “Aliens”)”

    “[P]arents [who]…were under the actual obedience of our king…at the time of their birth” can not include those beholden to another sovereign in any measure. At least that’s how I read it.


  311. Tribe and Olson wrote that, under the three sources identified in Wong Kim Ark, “the phrase ‘natural born’ includes both birth abroad to parents who were citizens, and birth within a nation’s territory and allegiance.”

    Senator McCain is covered by the first definition, and President Obama is covered by the second.


  312. Do we need to interpret NBC in light of the English Common Law according to Justice Gray, or is it not strictly though? Isn’t this the same argument of those in favor of the Minor decision being dicta, as to the definition of NBC not being a strict one?


  313. Full circle. Are we discussing dicta again?


  314. “Tribe and Olson wrote that, under the three sources identified in Wong Kim Ark, “the phrase ‘natural born’ includes both birth abroad to parents who were citizens, and birth within a nation’s territory and allegiance.”

    Senator McCain is covered by the first definition, and President Obama is covered by the second.”

    Only that Justice Gray did not concur with the first definition. But of course, the first definition was all dicta in Gray’s guidance.


  315. “Full circle. Are we discussing dicta again?”

    You bet. But I think this thread is very close to the decision. It’s two or three cases and a little research away.


  316. @slartibartfast: you and squeaky are the ones slinging the ad hominiums, so turn it on yourself dear. How about addressing the comment instead of flapping your threats. Because I am frankly unimpressed with either thus far.

    You have yet to make a convincing argument though you have been trying for years to do so.


  317. @Squeaky…. spelling suggestions from a little girl who cannot spell Fromme correctly and finishes posts with: “So there!”. Riiiiiight. I’ll get right on that.

    Now, why did you take up the name of a murderer for your online persona?

    Address the comment and answer the simple questions. Why should anyone listen to you when you won’t answer simple questions, nor address valid topical comments?


  318. Portney,

    ““Timothy Cunningham’s Law Dictionary (1771) was the only law dictionary that James Madison ordered for the Continental Congress. “”

    So the only law dictionary that the Continental Congress had and that was on the shelves of the brightest of the Founders was an English Law dictionary.

    Did you know that one of the Framers, Charles Cotesworth Pinckney studied law at Oxford University and actually attended the lectures of Justice Blackstone?

    Did you also know that in 1775, Sir Edmund Burke said this about the Colonists,

    “Permit me, Sir, to add another circumstance in our colonies, which contributes no mean part towards the growth and effect of this untractable spirit. I mean their education. In no country perhaps in the world is the law so general a study. The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the deputies sent to the congress were lawyers. But all who read, and most do read, endeavour to obtain some smattering in that science. I have been told by an eminent bookseller, that in no branch of his business, after tracts of popular devotion, were so many books as those on the law exported to the plantations. The colonists have now fallen into the way of printing them for their own use. I hear that they have sold nearly as many of Blackstone’s Commentaries in America as in England.”

    Did you know that during the Constitutional Convention, Blackstone’s “Commentaries on the Laws of England” was consulted for legal concepts.

    “Mr. DICKENSON mentioned to the House that on examining Blackstone’s Commentaries, he found that the terms, “ex post facto” related to criminal cases only” August 19th, 1787

    Did you also know that during the 1790 Congressional debates on the Naturalization Law, Representative Jackson talking about English Naturalization Laws quoted from Blackstone’s Commentaries on then said,

    “So that here we find, in the nation from which we derive most of our ideas on this subject”

    And that during the same debate, Representative Burke made a statement to the effect that the “case of children of American parents born abroad ought to be provided for, as was done in the case of English parents, in the 12th year of William III.“

    When Virginia’s Governor Thomas Jefferson became a member of the Board of Visitors at the College of William and Mary, he convinced them to start a Professorship in Law. He got his old mentor, George Wythe appoint as the first Law Professor. Wythe used Blackstone’s Commentaries as the principle law text.


  319. bob, so I take it it is your personal belief that WKA overruled MvH as to the definition of NbC in line with Tribe and Olson’s assertion? I’m curious as to what you think with your own reading of the WKA decision, is it your contention that by defining 14th “born” to include non-citizen parents that somehow through squinty nuance and inference it also defines A2 “natural born”? I take it you believe the MvH court defined 14th ‘born” inferentially in the same manner and as such was overruled by WKA? Sure is alot of supposition going on if you ask me.


  320. gorefan. that is interesting and thanks.


  321. “Sure is alot of supposition going on if you ask me.”

    About what I think? Absolutely.


  322. bob, this is a debate and not a request for forfeiture of your immortal soul. In all probability neither of us have a clear understanding of the matter. It’s just our opinions as to what is likely true. Relax.


  323. I tried to limit the supposition, Bob, but I still do not know the limits to WKA’s rationale. Have you decided if the rationale is specifically the text included in Ankeny? Or is it greater?


  324. Danae,

    Ad hominems (or ad hominiums or mad homiminiums) are only a fallacy if they are unjustified (and I don’t believe I’ve made threats of any sort–can you cite an example?). Can you point to any of mine that weren’t true? I don’t care to comment on the topic of the thread–my purpose is to point out the ignorance, lack of intelligence, lack of integrity, and incompetence of the birthers. Not being a lawyer, I don’t have any insight into the difference between dicta and holdings–except what I’ve gleaned from reading the comments of people I respect like Ballantine and Nal–, but, being a mathematician, the blatant logical mistake being made by Leo and the other birthers offends me. I’m not someone who suffers fools gladly and birthers are all fools. I notice that you are upset that Squeeky and I are calling birthers names, but you are completely unwilling to discuss the substance of our arguments–why is that? If our arguments are as unconvincing as you say, you should be able to easily attack them on their merits. What should we infer from your failure to do so? What do you think, Squeeky? What is behind the birthers’ impotence?


  325. Danae,

    What part of “do your own research” do you NOT understand??? That advice would work for both my “name” and your erroneous statement of the law. Particularly, this one:

    “For a person not born to two parent citizens, or born in a place other than their nation, there are questions. This person is a citizen by statute – and potentially affected by new or changed laws coming from congress, but not by birth.”

    First, the 14th Amendment is not a “statute.” That is why birthright citizenship (nbc) was placed into the Constitution. The 14th Amendment does give a lot of headaches to Sovereign Citizen types who are convinced it has something to do with gold fringe on flags, or capital letters in lawsuits. I truly hope that is not the source of your confusion.

    Second, you made this curious statement:

    “That is what Natural Born means. Naturally that person is born with one citizenship… Naturally, there is no need for explanation or justification. Naturally there can be only the one.”

    I think that maybe you are confusing natural born citizenship with that TV show called The Highlander, where they chop off each others heads and lightning bolts flash everywhere. In REAL LIFE, natural born citizenship, for most people, is just being born here under the jurisdiction of the United States. That is, born here, and not the kid of a diplomat or invading soldier.

    I suggest you read Wong Kim Ark, all 19,464 words of it, and maybe just TIVO, or do a DVR thingie on The Highlander.

    Squeeky Fromm
    Girl Reporter


  326. Squeeky,

    You should really be referring her to the movie “The Highlander” (Christopher Lambert, Sean Connery–a classic [under no circumstances should you watch the first sequel--ever {seriously}]–”There can be only one.”). Just my opinion…


  327. Slarti:

    I think that a lot of the anger comes from the inability to get any respect for their theories. It is as if the existence of valid legal disputes, such as over the constitutionality of Obamacare, automatically implies that any legal dispute is valid and has some basis in reality.

    This is why the Cognitive Decompensation seems to be accelerating among them.

    Squeeky Fromm
    Girl Reporter


  328. Slarti:

    Maybe you are right about the movie. Plus, this is a very interesting website. I did a poem for them over on the Humphrey the Hippo thread. I hope they like it.

    Squeeky Fromm
    Girl Reporter


  329. @ballantine

    You seem to have a trouble reading. Gray said in WKA the Supreme Court was “committed to the view” that children born of the country of citizens were excluded from the birth clause of the 14th amendment and he cited a unanimous decision (MvH) to support this. In the same passage he said the children born of subjects of “foreign states” were also excluded and that citation was supported in Elk v. Wilkins. Gray affirmed and upheld the finding in MvH, but he used creative license to bypass EvW by claiming that Indians were “alien nations” not “not foreign states” and that Indians had “a peculiar relation to the National Government, unknown to the common law.” Since Wong Kim Ark was Chinese, then he treated China as a “foreign state” instead of an “alien nation” to make a distinction that would exempt Wong Kim Ark from these exclusions. From this point forward in the decision, Gray does not use the term “natural-born citizen” but instead opts for what he calls “citizenship by birth” which is controlled by different criteria.

    @gorefan

    The phrase “as much a citizen as the natural-born child of a citizen” serves to show a distinction, and it does not mean “equal to.” An apple is “as much a piece of fruit” as a banana, but an apple is not a banana. A child of an alien might be as much a citizen as a natural-born child of a citizen, but the child of an alien is still NOT a natural-born citizen. What does this mean in regards to Obama? He is a fruit, but he is NOT a natural-born citizen under the definition used in BOTH Minor and WKA. He’s not even a 14th amendment citizen according to WKA because his parents did not have a permanent residence and domicil.


  330. Squeeky,

    I definitely agree that birthers are prone to false equivalences like that. You can see it on this thread with people trying to score abstruse debating points as if they could convince people of their ludicrous theories if they’re right about enough bits of trivial minutia. I think they see everything as a kind of zero-sum game…


  331. Squeeky,

    I liked your poem (and Mr. Eliot’s part, too…)–you should check out some of Elaine’s poetry (“Elaine M.”, one of the guest bloggers), she’s written some good stuff on this site. Definitely check out the movie if you liked the TV show–it was similar, but better (my opinion–it also came first).


  332. KSDB:

    You said:

    You seem to have a trouble reading. Gray said in WKA the Supreme Court was “committed to the view” that children born of the country of citizens were excluded from the birth clause of the 14th amendment and he cited a unanimous decision (MvH) to support this. In the same passage he said the children born of subjects of “foreign states” were also excluded . . .

    Uh, I think you are excluding about everybody born here in the country with your analysis. I am trying to think of people who either don’t have citizen parents or foreign parents, and I am coming up short. With what Danae said earlier it kind of sounds like movie night here, sooo are you maybe referring to the mutant X-Men???

    Have I missed something???

    Squeeky Fromm
    Girl Reporter


  333. ksdb

    I did ask you to give your interpetation of the entire sentence. Here it is again,

    “His [foreigner] allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ ”

    An alien in the United States owes allegiance to the United States as long as he is in “our territory” and in the words of Lord Coke if he has a child that child is natural born and as much a citizen as the natural born child of a citizen.

    You ignored the part about the alien owing allegiance to the United States while in the United States, his child born here being natural born and a citizen.


  334. squeezy, you ARE missing a lot. You need to take your own advice and read ALL the words from the decision. Here’s the passage I was referring to:

    “committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment …”

    Do you SEE where it says “subjects of foreign States”??? These are the words of the court, not mine.

    And you’re right about one thing: this would exclude a lot of people, but this is ONLY talking about the citizen clause, not the entire 14th amendment which has broader application. The birth clause in the 14th amendment was written to grant citizenship to a select minority of persons born in this country. It wasn’t designed to grant birth citizenship who were already citizens by virtue of being natural-born citizens. All others were expected to naturalize.


  335. KSDB:

    You are butchering quotes. This language “committed to the view that all children born in the United States of citizens or subjects of foreign States. . .” comes from Section 5 of WKA as I recall, and was part of what the WKA court was rebutting from the Slaughterhouse Cases.

    This was why the Minor v. Happersett cite was made in that section of the case. Not as precedent, but to show the Slaughterhouse judges were NOT committed to that view as proven by what those same judges said two years later in Minor.

    For goodness sakes, please pay attention to what you read and don’t just match words. You need some context.

    Squeeky Fromm
    Girl Reporter


  336. danae

    fromm was never convicted of murder, only the attempted assassination of a president.

    she was also paroled in august 2009 so the person you’re addressing may well be that squeeky fromm and since it is her nickname she can spell it any way she likes.

    also neither the series or the sequel of the highlander lived up to the original movie. as you said doc, “there can be only one”.


  337. Squeeky,

    Context is not the birther’s friend…


  338. ksdb
    “You seem to have a trouble reading. Gray said in WKA the Supreme Court was “committed to the view” that children born of the country of citizens were excluded from the birth clause of the 14th amendment ”

    You are joking right? Or was that a typo?

    Here is the passage:

    “understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign states were excluded from the operation of the first sentence of the fourteenth amendment”

    The phrase is “citizens or subjects of foreign states”.

    Here is what Justice Gray is talking about. Before the Minor case there were the Slaughter House Cases. In Slaughter House, the court (which included most of the Justices who decided the Minor Case) said that the children of foreigners born here were not citizens. So, Justice Gray is saying that those same Justices who said that children of foreigners were not citizens in the Slaughter House, changed their minds in the Minor Case and said there are doubts but they would not settle the doubts.

    Go back and read the paragraph. It starts “That neither Mr. Justice Miller, nor any of the justices who took part in the decision of the Slaughter House Cases, understood the court to be committed to the view”.

    The Justices are not committed to the view that was expressed in the Slaughter House Cases.


  339. Pete,

    Danae already knows that. Who I am, and what my name is all about is in my profile on the main forum where we usually fight. Who knows what she is trying to prove. For what it is worth, I suspect the real Squeaky Fromme is also older than 27.

    Slarti:

    I agree. The Vattle Birthers come up with all these weird interpretations of law, and then are too lazy to do the research to try to reconcile all the anomalies.

    Squeeky Fromm
    Girl Reporter

    Squeeky Fromm


  340. pete,

    I love the dissolves with the wrestling match and the aquarium.

    The sequel may well be the worst movie I have ever seen.

    (I’m ambivalent about the TV show–I’ve only watched about a half dozen episodes…)


  341. @ gorefan, you’re having trouble reading. The passage you cited doesn’t say the child of an alien is natural-born. It says the child of an alien is AS MUCH a citizen as the natural-born child of a citizen. There’s a clear distinction that only the child of a citizen is being characterized as “natural-born,” and that the child of an alien can be as much of a citizen, but nowhere does it say that the child of an alien is natural-born. You’re trying to connect a dot that isn’t connected this way in that passage.

    And, yes, under the 14th amendment, the child of an alien CAN be a citizen, but according to Wong Kim Ark, it requires MORE than just temporary or local allegiance. This is why the court gives several passages on residence and domicil, including the same paragraph you cited:

    “including all children here born of resident aliens”

    “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection …”

    “Domicil” is defined as having a permanent residence and it is used to satisfy the subject clause of the 14th amendment. Under this definition of citizenship (which is still NOT the same as NBC), Obama would fail to be a citizen because his father was not domiciled here, and technically, neither was his mother upon marrying his father. This means Obama, even if he could legally prove he was born in the U.S. is neither a natural-born citizen NOR a 14th amendment citizen.


  342. squeezy, the only butchering of quotes is on your part. The justices in Slaughterhouse were the SAME justices who voted UNANIMOUSLY in Minor to reject an argument that women were citizens by virtue of the 14th amendment. That argument was rejected by citing the definition of natural-born citizen “all children born in the country of parents who were its citizens.” It’s why the NEXT paragraph in WKA after this one cites that definition. Reading is fundamental, squeezy. Read ALL the words in the decision. Pay attention to the context. Gray’s comments about the Slaughterhouse case was only to point out that Slaughterhouse does NOT provide an exclusive (pun intended) decision on the exclusions from the subject clause of the 14th amendment.


  343. Squeeky,

    Only some of them are too lazy–others don’t understand how to do research (they do what I call “cargo cult”* research–like Butterdezillion) and some of them understand that they can’t really do the research as it would prove them wrong and some of them are stupid enough to fake the research and don’t realize that rational people see how incompetent they are.

    * A chapter in Richard Feynman’s autobiography was a speech he gave on “cargo cult science”–as in the cults on south pacific islands trying to bring the planes (with all the good stuff!) back after WW II by building fake towers and runways.


  344. @gorefan … you’re leaving out parts of the citation and ignoring the context of this paragraph and the following paragraphs. Read it.

    “all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment”

    Minor excluded all children born in the United States of Citizens and Elk v Wilkins excluded all children born in the United States of subjects of foreign States. This is why the next couple of paragraphs are about the Minor decision and the next few paragraphs AFTER that are about the Elk decision.

    Also, the context of the same paragraph on excluding the children born in the U.S. of citizens is supported by citing the unanimous Minor decision. That’s what the court is talking about when it says:

    “manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: “Allegiance and protection are, in this connection” (that is, in relation to citizenship),”

    The judgment delivered but two years later is Minor v. Happersett. The citation from Chief Justice Waite is from Minor v. Happersett. The next paragraph is a continuation of the citation from Minor v Happersett. The definition in the next paragraph of natural-born citizens was the same definition in Minor v Happersett that was used to exclude children born of citizens from the birth clause of the 14th amendment. Read it. Learn it. Comprehend it.


  345. ksdb:

    Maybe “butchering” was the wrong word. “Butchers” provide a valuable service to society. Perhaps I should have said “massacring quotes”— because that word means an indiscriminate slaughter or botching or bungling.

    Here is what you said that caused me to opt for a stronger word:

    “The justices in Slaughterhouse were the SAME justices who voted UNANIMOUSLY in Minor to reject an argument that women were citizens by virtue of the 14th amendment. ”

    That was a bizarre statement. Do you ever try to think about this stuff before you say it???

    Squeeky Fromm
    Girl Reporter


  346. Slarti:

    The cargo cult stuff has some sympathetic magic qualities going on. “Like gets like”. I did a poem on Halloween which used that. It was a take-off on the Shakespeare witches in MacBeth. Here is part of it that applies here:

    Second Birther Witch:

    Case of Minor Happersett
    Throw it in, you won’t regret.
    Cut a paragraph in two
    Throw the first part in the stew.
    Here’s the part you must leave out
    It’s the half that mentions “doubt”.
    They won’t find it, so we think
    (Justia has lost the link!)

    All

    So dance about the magic pot;
    And Thank God, ethics. . . we have not.

    Squeeky Fromm
    Girl Reporter


  347. I’m not sure what you folks thought of the opening paragraph of Minor and the relevance of citizenship in their decision;

    MvH:

    “The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.”

    (snip)

    “There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are expressly declared to be “citizens of the United States and of the State wherein they reside. But, IN OUR OPINION, it did not need this amendment to give them that position.” Emphasis added.


  348. I don’t believe that there are nearly 400 posts on something that should be clear. The vast majority are provoked by birther liars simply asserting and reasserting the same drivel.

    (a) WKA differentiated between citizen and natural-born citizen.
    I offer these two statements, both are undoubtedly true:
    [1] Jackie Robinson was a black, major-league baseball player.
    [2] Satchel Paige was a baseball player.
    Note that nowhere do I exclude Paige from being a black major-leaguer by merely referring to him as a baseball player.

    Birther are liars! Not stupid or dense–merely bigoted liars. They don’t actually believe the venom that they spew.


  349. “Minor excluded all children born in the United States of Citizens and Elk v Wilkins excluded all children born in the United States of subjects of foreign States.”

    BOth wrong. Minor didn’t exclude anyone from the 14th Amendment and Elk dealt solely with indians who were treated as being born in a foreign state and said nothing about children of aliens. Need to actually read the case.


  350. “Minor excluded all children born in the United States of Citizens and Elk v Wilkins excluded all children born in the United States of subjects of foreign States.”

    Nonsense. Minor did not exclude anyone from the 14th Amendment and Elk was solely about indians and said nothing about children of aliens. You can spin all you want but WKA only cited Minor to point out that is did not address the question of children of aliens. You are either being dishonest or don’t know how to read cased law.


  351. “And, yes, under the 14th amendment, the child of an alien CAN be a citizen, but according to Wong Kim Ark, it requires MORE than just temporary or local allegiance.”

    Wrong again. The court never said domicile was required. It said it was included under the common law. He actually cites Calvin’s Case in his conclusion:

    “His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;”

    Seriously, the dishonest twisting of WKA to try to make it say the opposite of what it actually says is embarassing. These type of arguments would get a lawyer sanctioned in court but it seems clear the people making these arguments are not lawyers. SImply ignoring the clear statements that natural born citizen is to be defined by the English common law, that the definition of natural born subject prevailed under the original Constitution that :

    “The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.”

    That

    “All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.”


  352. “@ gorefan, you’re having trouble reading. The passage you cited doesn’t say the child of an alien is natural-born. It says the child of an alien is AS MUCH a citizen as the natural-born child of a citizen. There’s a clear distinction that only the child of a citizen is being characterized as “natural-born,” and that the child of an alien can be as much of a citizen, but nowhere does it say that the child of an alien is natural-born.”

    No, you are trying to read something into a quote that isn’t there. Binney is saying children of citizesn and children are both “citizens,” it says “citizens,” by operation of the same principle. It doesn’t say they are different types of citizens. If they were different types of citizens they would not be citizens by operation of the same principle. Simply not calling someone natural born does not mean they are not natural born. A “natural born citizen” is also a “citizen.” Binney actually defined “natural born citizen” in the paper that Gray is quoting as one born “within the limits and under the jurisidiction” of the sovereign which is straight from Blackstone. Binney also said parentage was irrelevant. Why do you focus on an ambiguous quote from Binney and ignore the clear quotes from Justice Curtis and Gray which clearly define what natural born means? Do you skip over those pages?


  353. Monkey Boy, why so angry?


  354. Squeeky Fromm, Girl Reporter1, November 16, 2011 at 9:31 pm

    slcraigbnc:

    You asked: Yet still no one can show me the PROMULGATED LAW that provides for Jus Soli, pre 14th,

    Answer: It was NOT promulgated law. It was English common law brought to America. Read Wong Kim Ark. 1898. You can find it above.

    Read Lynch v. Clarke, 1844. I won’t keep cutting and pasting for you. It is above.

    Squeeky Fromm
    Girl Reporter

    Well, seems that is an admission against interest…..a State Court and ‘dicta’ citing foreign Law is controlling of a Clause of the Constitution that pays homage to the Founding generation and tho Prodigy, (read Posterity), they provided for…..

    …..I just do not find that in any Article or Clause of the Constitution which CLEARLY states that it is to be considered the Supreme Law of the Land and ONLY those things in the Constitution by the powers delegated therein constitute the Law to be respected with all powers not delegated and laws not expressed are reserved to the States and to the People.

    So I’ll continue to ask, respecting that I am guaranteed a Republican form of Guv’mnt operating under the Constitutional Rule of Law……….wher are the laws written that support your assertions…..

    …P.S. The citations in WKA are NOT English “common law” , but rather English Statutory Laws on the subject of subject-hood Promulgated and known as the Queen Anne Statutes under the Political theory of the Divine Right of Kings and. although the philosopher writers devote inquiries into the political systems of Kingdoms, Our Declaration of Independence CLEARLY states that the U.S. was God-bent to break away and sever the bonds from such form of Guv’mnt and to establish a New Nation respecting the Peoples inalienable Rights.

    You should start with Aristotle & Cicero and the jump to Pufendorf & Grotius if you are bent to cite “common law” but al least should attempt to understand that the actual meaning of the “English Common Law” refers to the System used to adjudicate cases and controversies, replete with a hierarchy of Writs, Rules and Regulation and that it is within that system the conflicts of “statutory law” are adjudicated, That is the “common law” that was retained in varying degrees, NOT the English Statutory Law.

    P.S.S.;

    Take the time to read the Queen Anne Statutes and as they subsequently evolved and you will find that the British Empires “natural born subjects” were divided into multiple categories with most being DEEM AS IF natural born subjects, once subjugated by conquest, and DEEMED so AS IF from birth and into perpetuity with NO RIGHT to EXPATRIATE.

    Clearly, to my understanding of Inalienable Rights, not synonymous with the needs of the American form of the turn of words, made idiom by virtue of its specific purpose within the Clause, natural born U.S. Citizen, (sic).


  355. Slarti, I appreciate your honesty in admitting you do not want to discuss the topic of the thread. Sorry I jumped all over you. I hope you understand that I was offended at being labeled a birther, when I made no statement that would support that claim.

    Since you are a mathematician maybe you could help me with this. Can you take this quote and break it down into an x,y,z type of formula to show the relationship of the major terms?

    “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. 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, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.”

    I have always been curious how it would look, if portrayed in a different format.

    Thanks in advance.


  356. Squeaky, I’m not going to go through and pull out each instance of name calling or insult. Once was more than enough for me to disregard anything you have to say on this and any other subject you might discuss in the future. The same can be said to others here, but they don’t have a blog they’re promoting. The reality is you do make good points but good as they are they do not outweigh your poor behavior. I follow many blogs and yours looked to be worthwhile addition to my reading list, however every snarky comment and insult detracts value from anything you say leading me to conclude you should not be taken seriously. For future discussions, if you wish to be taken seriously and have any amount of gravity assigned to your arguments, refrain from any name calling and insults. Your treatment of others reflects on you which in turn casts a long shadow on your blog. It’s your choice the kind of shadow you cast.


  357. squeegy, you need more than ad hominem characterizations about butchers or massacres to make a salient point. You also need to learn to read. The justices in Slaughterhouse were the same ones who unanimously voted in Minor. The quote from WKA says this very clearly:

    “while all those judges but Chief Justice Chase were still on the bench”

    What part of that do you NOT understand?? You can look up both of these cases and see that eight of the justices took part in BOTH decisions. Gray was explaining that the list of exclusions to the subject clause in Slaughterhouse was NOT comprehensive. This was clear from the unanimous Minor decision. That’s what the sentence sence. The context supports this. Read it. Learn it. Understand it.


  358. slccraignbc,

    I am curious as to what is the definite position of those in favor of WKA case that settles who are NBC. When Justice Gray pointed out to us that we needed to look elsewhere outside the Constitution. Didnt he give us guidance that we needed to interpret it in light of the English Common Law, or is the English Statutory Law, or both?


  359. No Gray was saying the members of the Slughterhause court were not committed to the view that children of aliens were not citizens under the 14th Amendment since the same Justice in Minor failed to address the status of children of aliens at all. Didn’t say they were not citizens under the original Consitution or the 14th Amendment but expressly stated they would not address their status. Anyone saying Gray cited Minor for any other reason, or that he agreed with anything said in Minor, is simply not telling the truth.


  360. “P.S. The citations in WKA are NOT English “common law” , but rather English Statutory Laws on the subject of subject-hood Promulgated and known as the Queen Anne Statutes under the Political theory of the Divine Right of Kings and. although the philosopher writers devote inquiries into the political systems of Kingdoms, Our Declaration of Independence CLEARLY states that the U.S. was God-bent to break away and sever the bonds from such form of Guv’mnt and to establish a New Nation respecting the Peoples inalienable Rights.”

    Simply not true. WKA mentions these statutes and says they didn’t change the common law rule.

    “So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent Com. 39, 50, 53, 258 note; Lynch v. Clarke, 1 Sandf.Ch. 583, 659; Ludlam v. Ludlam, 26 N.Y. 356, 371.”

    Can’t be clearer. You just can’t seem to understand that there was no statute making anyone born in the United States a citizen prior to 1866. Do you not think that children of citizens born in the United States were citizens? No one ever said they were citizens by statute.


  361. Was there a statute that defined “foreigner” and/or “alien” prior to 1866?


  362. Portney

    “But, IN OUR OPINION, it did not need this amendment to give them that position”

    The Court declares women are citizens by the 14th Amendment and than says that if the 14th Amendment didn’t exist they would still be a citizens.

    The Court in declaring them citizens by the 14th Amendment didn’t need to go any further to decide the case.


  363. Gorefan, I have been thinking about your theory.

    If both Minor’s extended language and WKA’s extended language became “holding” due to Ogilvie and WKA overturned the precedent set in Minor, does a holding that cites Minor, well after WKA was decided, in turn overrule WKA and reinstate Minor as precedent?


  364. Not really “due” to Ogilivie, but I think you get my drift


  365. “Was there a statute that defined “foreigner” and/or “alien” prior to 1866?”

    No, but their was no dipute what “alien” meant in any legal treatise or court case. An undiputed legal term of art.

    “But to return to the subject of alienage—an alien, according to the notion commonly received as law, is one born in a strange country and in a foreign society, to which he is presumed to have a natural and a necessary allegiance.” James Wilson, The Works of James Wilson, Vol. II, pg. 291 (1803)

    “ALIEN, persons. One born out of the jurisdiction of the United States, who has not since been naturalized under their constitution and laws. To this there are some exceptions, as this children of the ministers of the United States in foreign courts.” See Citizen, Inhabitant. Bouvier Law Dictionary (1843)

    “An alien is one who is born in a foreign country.” Analysis of Civil Government, By Calvin Townsend, pg. 325 (1869)

    Alien: In american Law. One born out of the jurisdiction of the United States. Alexander Mansfield Burrill, A new law dictionary and glossary, pg 81 (1871)

    “An alien is a person born out of the jurisdiction of the United States. There are some exceptions, however, to this rule, by the ancient English law, as in the case of the children of public ministers abroad, (provided their wives be English women,) for they owe not even a local allegiance to any foreign power. ” James Kent, COMMENTARIES ON AMERICAN LAW (1826)


  366. “If both Minor’s extended language and WKA’s extended language became “holding” due to Ogilvie and WKA overturned the precedent set in Minor, does a holding that cites Minor, well after WKA was decided, in turn overrule WKA and reinstate Minor as precedent?”

    Only if its discussion was not dicta and it cited Minor for the proposition that natural born citizens need citizen pareents. This would never happen because Minor doesn’t say natural born citizens need to have citizen parents.


  367. ksbd

    “@ gorefan, you’re having trouble reading. The passage you cited doesn’t say the child of an alien is natural-born. It says the child of an alien is AS MUCH a citizen as the natural-born child of a citizen.”

    Why do you continue to skip the first part of the sentence? Here it is again.

    “His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;”

    He is quoting Lord Coke’s description of how things worked in England to explain how they worked in the United States.


  368. Thanks Ballentine. I have to run. I will read and comment a little later.

    BTW, does anyone know how to “refresh” this thread on a Droid, without scrolling to the top? I hope it can be done without an “app”.


  369. Re what Minor say;, see if you can talk Slarti into making a formula out of the quote I posted.


  370. Minor says…


  371. Komfort

    “Gorefan, I have been thinking about your theory.”

    If Leo is right in his analysis of Ogilvie, the answer to your question is it would depend on what the ruling actually said. Simply citing Minor without a context to why it was cited would not have an effect.

    But that is if Leo is right.


  372. Not a lawyer, but Obama’s father was never a citizen. He came as a foreign student to attend college. He never naturalized as far as we know. He supposedly married Obama’s mother and went back to Kenya. That information alone states that Obama was not a NBC, According to the constitution, You have to have been born of 2 U.S. citizens.


  373. ballantine, your earlier quote of WKA did not include the subsequent sentence which clearly identified Binney’s distinct differences in two native born children; “The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’”

    My understanding of the WKA decision is one wholly and utterly premised on the 14th permissive use of “born” (noted by the court’s understanding of the amendment’s authors intent described 10 or so paragraphs later).


  374. The Oglibe agument has no merit. Determining Minor to be a citizen did not answer the question presented at all. Citizenship did not give her the right to vote. The court’s answer to the question presented was that citizenship was irrelvant to the right to vote. It was not an independant grounds to answer the question presented, it was irrelevant to the right to vote.

    For anyone who actually reads alot of case law, there is another obvious reason Minor discussion is dicta. It simply makes a few assertions, cites no authority, give no explanation of why the common law should be followed or what the common law rule was, cites no countervailing arguments and fails to tells us what doubts exists. You would never see that in precedent. Compare Minor’s discussion of the common law with Wong Kim Ark’s. The latter spends page after page telling us why the common law should be followed, what the common law is, the original and basis for the rule, who is coveedr and who is not, cites every supreme court case that have touched on the subject as well as most of the legal giants in England and the United States and addresses and dismisses all opposing theories that have been put forth. That is what precedent looks like.


  375. “ballantine, your earlier quote of WKA did not include the subsequent sentence which clearly identified Binney’s distinct differences in two native born children; ”

    My citation was to refute the point that domicile was required under WKA which Coke’s quote makes clear is not required. Binney’s quote doesn’t identiry a distinct difference betweeen native born children. You are reading that into his quote by inferring that not using “natural born” when referring to children of aliens means they are somehow a different type of citizen. Binney say children of aliens and children of citizens are both “citizens” by operation of the same principle. If they are citizens by operation of the same principle, they are obviously not different types of citizens. The principle Binney is talking about is the rule from Calvin’s Case which madde everyone of subject or citizen by locality of birth and, by definition, are natural born. Binney entire paper was on the United States adopted the English common law and obviously defined “natural born” by the common law for example:

    “But the law of France rejects the principle of the English law, and of our own laws, that birth within the limits and jurisdiction of France, makes a Frenchman, or a natural-born citizen or subject of France, absolutely,…” Horace Binney, American Law Register, 2 Amer.Law Reg. 206 (February 1854).


  376. Makes you wonder why WKA bothered to quote Minor.


  377. “But, IN OUR OPINION, it did not need this amendment to give them that position”

    The Court declares women are citizens by the 14th Amendment and than says that if the 14th Amendment didn’t exist they would still be a citizens.

    The Court in declaring them citizens by the 14th Amendment didn’t need to go any further to decide the case.

    gorefan, would you please explain what you mean?

    “The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship, which the State cannot by its laws or constitution abridge.

    There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are expressly declared to be “citizens of the United States and of the State wherein they reside.” But, in our opinion, it did not need this amendment to give them that position. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision.”

    The context of “But, IN OUR OPINION, it did not need this amendment to give them that position” is simply that women, such as Minor, were citizens of the US and respective state without any need for consideration of the later amendment, her political rights based on citizenship are found in the original constitution (which, of course, the court rules did not give her right to the vote).

    BTW, where does the court declare them citizens by the 14th and, as such, didn’t need to go any further to decide the case?


  378. My prior context argument is bunk (gibberish) without relation to what the court was really intimating…which was NbC, that persons born on the land of natives are themselves citizens (making the later amendment unnecessary).


  379. “The court’s answer to the question presented was that citizenship was irrelvant to the right to vote.”

    Ballantine,

    Should I interpret that as you do not agree with Nal then when he said:

    ‘”The determination of citizenship is critical in Minor, not what constitutes “natural born citizen.”


  380. “Should I interpret that as you do not agree with Nal then when he said:

    ‘”The determination of citizenship is critical in Minor, not what constitutes “natural born citizen.”

    Yes, why is it critical to determine if Minor is a citizen if citizenship is irrelvant to the right to vote. The Court, for example, could have simply said it need to to determine her citizenship since it was not relevant to the right to vote. Why didn’t the Missouri Supreme Court determine here citizenship? Because it was conceded and no bearing on its holding that citizenship did not give one the right to vote.


  381. Wow, so much confusion in regard this issue. It seems like most on this site think alike and quickly trash dissenting opinions; however, doesn’t the mere fact that this issue cannot be agreed upon point to the need for SCOTUS to weigh in once and for all and settle this. This would be the most logical course of action. Of course, that is unless some of you don’t want to take a chance that the “born of two citizens” crowd may be right.


  382. The Missouri Supreme Court actually never mentioned whether Minor was a citizen or not in its opinion. It held that nothing in the 14th Amendment prohibits the states from restricting “the right of suffrage to the male inhabitants.” Being a citizen simply was not relevant to such holding.

    http://books.google.com/books?pg=PA60&dq=minor+v+happersett+missouri+supreme+court+1873&id=ENIaAAAAYAAJ#v=onepage&q&f=false


  383. cynkading said:

    “Obama’s father was never a citizen. He came as a foreign student to attend college. He never naturalized as far as we know. He supposedly married Obama’s mother and went back to Kenya. That information alone states that Obama was not a NBC, According to the constitution, You have to have been born of 2 U.S. citizens.”

    Who told you that? It is wrong.

    “Natural born citizen. Persons who are born within the jurisdiction of a national government, i.e. in its territorial limits, or those born of citizens temporarily residing abroad.” — Black’s Law Dictionary, Sixth Edition

    “Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”—William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)

    “Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are “natural born citizens” and eligible to be President….”—- Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) [Edwin Meese was Ronald Reagan’s attorney general, and the Heritage Foundation is a well-known Conservative organization.]


  384. @ballantine, you’re not understanding the context of Gray’s citation of Slaughterhouse, Minor and Elk. In the series of paragraphs he looks at how the SCOTUS viewed the 14th amendment, specifically the subject clause. In Slaugterhouse, it says:

    “The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”

    Gray takes exception with this because a) because he didn’t think children of consuls should be lumped in with children of foreign ministers:

    ” … Mr. Justice Miller concurred, that consuls, … are not considered as entrusted with authority to represent their sovereign … or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers …”

    And b) says that these exclusions in Slaughterhouse are not comprehensive. This is why he quotes Justice Marshall in saying that you have to look at the context of the case when “general utterances” are made within a decision.

    “general expressions in every opinion are to be taken in connection with the case in which those expressions are used. …. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”

    Gray was trying to “completely investigate” the court’s rulings of citizenship under the 14th amendment. The exclusions listed by Miller in Slaughterhouse were not comprehensive and Gray says it was not completely investigated. This is made clear by the two following decisions: Minor and Elk. In Minor, the court UNANIMOUSLY said that children born in the country to citizen parents did NOT need the 14th amendment to confer their citizenship. This EXCLUDES those persons from the operation of the citizen clause and it explains the context of Gray’s comment that the court was:

    “committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment …”

    The Minor decision referenced in the next two paragraphs does NOT say that children born of aliens are excluded from the citizenship clause of the 14th amendment. It says the children born in the country of citizens do NOT need the 14th amendment to confer citizenship. That EXCLUDES such persons from the citizen clause.

    The Elk decision excluded Indians from the subject clause because it said:

    “are no more “born in the United States, and subject to the jurisdiction thereof” within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government ….”

    I’ve already explained how Gray wiggled around the Elk exclusion by making up a distinction between “alien nations” and “foreign states.” He also works around this exclusion by using permanent residence and domicil to satisfy the subject clause. It’s all there. Read it all.


  385. “doesn’t the mere fact that this issue cannot be agreed upon point to the need for SCOTUS to weigh in once and for all and settle this.”

    We have no control over whether the Supreme Court takes a case. Until then we have to interpret the law that we have. There is no disagreement among scholars or subsequent court cases on this point. There is disagreement by poeple on this board who are clearly not scholars. The problem is people here insisting Minor says something it doesn’t say and deparately trying to ignore what Wong Kim Ark has said. Since WKA, there are a half dozen or so Supreme Court decisions stating the President must simply be a native born citizen, dozens of federal cases where children of aliens are called natural born citizens, a recent state court case affirming the English common law rule based upon WKA and, of course, hundreds of treatises, dictionaries and law reviews affirming the common law view. That is the law we have.


  386. scott osborne 1, November 17, 2011 at 11:56 am
    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

    SCOTUS did rule on this in 1875. The meaning has not changed but the argument is that the times have.

    Back in 1875, the United States Supreme Court, in Minor v, Happersett, ruled that:

    “Natural Born Citizen” was defined as children born of two U.S. citizens – regardless of the location of the birth. It found: “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.”


  387. scott osborne said:

    “…doesn’t the mere fact that this issue cannot be agreed upon point to the need for SCOTUS to weigh in once and for all and settle this. This would be the most logical course of action. Of course, that is unless some of you don’t want to take a chance that the “born of two citizens” crowd may be right.”

    IF the US Supreme Court took the case, the two-parent theory would lose OVERWHELMING, a unanimous decision or at worst eight to one. But the US Supreme Court is highly unlikely to take the case for that very reason. There has to be four justices who think that there is an issue, and if all or virtually all of them think that the meaning of Natural Born Citizen comes from the common law and includes all the children born in the USA obviously they do not think that there is an issue.

    Personally, i would be delighted if the court took the case because I know that the unanimous or near unanimous decision would be made and that would tend to discourage two-fers, meaning the proponents of the two-parent theory.

    As I have pointed out above, in my post of November 16, 2011 at 1:22 am, there is good historical evidence that Natural Born Citizen stems from the common law and in fact was used in America to refer to the place of birth. That means that among the conservative justices the originalists would not vote for the two-parent theory. And there is nothing in the Constitution itself or any American law or document or anything written at the time that said “two parents are required”–or anything like that. And under strict construction judicial principles “if it does not say it, it does not mean it.” So that is why it is highly probable that all or virtually all the conservative justices on the court would vote against the two-parent theory, along with all the liberals and the swing vote too, of course.


  388. Joe goes to an employment agency and tells them he wants to be a mathematician. The agency opens their book of jobs to see what may be required of Joe.

    They find it was never doubted that a person holding a degree in mathematics was indeed a mathematician.

    They do note that some references go so far as to allow persons with an unknown educational background to become mathematicians. But that group is plagued with doubt.

    Joe does not have a degree in mathematics. The agency sets about resolving the doubts before Joe leaves.

    Does this mean that when the doubts are resolved, Joe now has a degree? Or does it mean a person who does not have a degree can be a mathematician?


  389. cynkading said “SCOTUS did rule on this in 1875. The meaning has not changed but the argument is that the times have.

    Back in 1875, the United States Supreme Court, in Minor v, Happersett, ruled that:”

    Answer: Haven’t you been reading anything on this post? NO, the US Supreme Court made no such ruling.


  390. What did SCOTUS mean when the said that the plaintiff’s whole argument proceeded upon the idea of women to be considered as citizens the same as men?

    “. 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.”

    “But if more is necessary to show that women have always been considered as citizens the same as men, abundant proof is to be found in the legislative and judicial history of the country. “


  391. Sorry ksdb, you are again twisting what Gray said. He said the passage was clearly dicta which is “not formulated with the same care and exactness as if the case before the court.” To illustrate such lact of case he points out that Miller lumped ministers and counsels together. The reason Gray is citing this was to dismiss Miller’s exclusion of children of foreign subjects which is contrary to the holding of this case. Such is illustrated when Gray says:

    “That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment.”

    He cites Marshall to point out that this Slaughter dicta should not be given weight. Seriously, do you not realize you are twisting the meaning of all this beyond recognition. It is simply dishonest.

    Minor doesn’t say children of citizen are exluded from the 14th Amendment. It said they didn’t need it to make them citizens. By the same token, Gray clearly stated on pate 675 that before 1866, native born children of aliens were citizens. So clearly children of aliens didn’t need the 14th Amendment either since he says they were citizens before that. Doesn’t mean they are exluded from the Amendment. You are dishonested claiming the court is saying something it doesn’t. This is very simple. Miller says children of foreign subjects are exluded. Gray says such is dicta and to illustrate the court was not committed to this view cites a case which simkply says the citizenship status of such persons was in dispute.

    Now, try going to the part of the decision where Gray actually talks about who is natural born.


  392. “The Elk decision excluded Indians from the subject clause because it said:

    “are no more “born in the United States, and subject to the jurisdiction thereof” within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government ….”

    Do you not even read what you write. Gray is comparing indians to aliens born in a foreign country. DUH. That is becuase Gray tells us that we treat the tribes as foreign nations hence children born to suich tribes are treated as born in a foreign nation. There was a whole debate about this in Congress where indian children born in the indians nations were deemed aliens but indian children born to indians who had left their tribe and came within our jurisdiction would be citizens.


  393. We are now 3 years down the road and we are still divided about this president and whether he is eligible. Why????These questions should have been settled before he was elected and not now as we head towards another election. We as people will have differing opinions about things but we should all be united as to a common goal and that is to stop this country from free-falling into country of hate and division. I have an open mind and I can see points to both sides of the equation. What I do not understand is why things are written to where there is confusion when it should be so very clear as to the meaning of what these documents and rulings have stated.


  394. Re: “We are now 3 years down the road and we are still divided about this president and whether he is eligible. Why???”

    Because a small group of people with evil motives are willing to lie, and to keep on lying, about the facts and the law. Obama was born in Hawaii, which has been demonstrated overwhelmingly, and the US Constitution considers every child born in the USA except for the children of foreign diplomats to be a Natural Born US citizen.


  395. Komfort,

    Interesting take… the reasonable logic is that Joe even though is granted to be a mathematician, never had, or never will hold a degree in mathematics. So it is not absolutely necessary to hold a degree in mathematics to become a mathematician for that authority.


  396. Which hospital? There is confusion there as well.


  397. Komfort,

    Axiom1. The Pythagorean theorem is a mathematical construct

    Axiom2. Persons who create mathematical constructs are known as mathematicians

    Axiom3. Universities were invented after Pythagorus’ death

    Lemma: Pythagorus did not have a degree

    Proof: ;-)

    Theorem: It does not require a degree to be a mathematician

    Proof: Exercise for reader (rafflaw–this is logic about math, not actual math, so you shouldn’t have a problem… ;-))

    Does that answer your hypothetical?


  398. Re: “Which hospital? There is confusion there as well.”

    No there isn’t any confusion. There are only birthers who say that there was confusion.

    Obama has always said Kapiolani. HIs sister always said Kapiolani (she was simply misquoted by UPI once, and a correction was made). His long-form birth certificate says Kapiolani. The former Republican governor of Hawaii says Kapiolani. The current Democrat governor of Hawaii says Kapiolani. And this witness–who recalls being told about Obama’s birth in 1961 and writing home to her father about it (because he was named Stanley and so was Obama’s mother) also said Kapiolani (http://www.buffalonews.com/incoming/article137495.ece (The birther allegation that Dr West had retired by 1961 turns out to be false).


  399. Komfort,

    I’ll accept that you’re not a birther (and answer your question about the logical structure of the quote) provided you can say “shibboleth”. In this context, “saying shibboleth” is equivalent to saying: “I believe (or know) President Obama is a natural born citizen and eligible for the office of POTUS.” No birther can do that.


  400. Komfort,

    You don’t doubt Pythagorus was a mathematician, do you?


  401. Ellen, back off the birther comments. I don’t care where he was born. I am not affiliated with any political party. Don’t assume because I have questions that you can label me.

    If everything was settled about his eligibility then we would not be having this conversation.


  402. @ballantine,

    Nothing was twisted and you’re actually helping support my point. You said:

    “He said the passage was clearly dicta which is “not formulated with the same care and exactness as if the case before the court.””

    I already pointed this out when I talked about Miller not “completely investigating” the subject at hand in Slaughterhouse. This is why Gray went on to cite Minor and Elk. The ONLY thing Gray actually took exception with from the exclusions in Slaughterhouse was the inclusion of consuls. Gray clearly agrees children of foreign ministers should be excluded. He cited Elk to show the court was committed to excluding children born of foreign subjects, but worked around this by saying Indians were part of “alien nations” and not “foreign States.” Note that Gray doesn’t actually explain nor support what this difference is. This is pretty hypocritical after criticizing Slaughterhouse by making a statement “unsupported by any argument, or by any reference to authorities, and that it was not formulated with the same care and exactness …” This is exactly what Gray did with his alien nation distinction.

    As for your comment on Minor: Are you paying attention to what you’re saying??? Talk about stupid commentary:

    “Minor doesn’t say children of citizen are exluded from the 14th Amendment. It said they didn’t need it to make them citizens.”

    This means the same thing. Waite specifically said the 14th amendment did not confer citizenship on Virginia Minor. His reasoning is based on definition of citizenship for a class of people: those born in the country to parents who were its citizens. These people did NOT need the 14th amendment and it did NOT confer citizenship on this person. Further, the syllabus, which was cited in Ex Parte Lockwood notes:

    “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 …”

    Note that it says SINCE the adoption of the 14th amendment … this means the 14th amendment has no affect on this class of persons who were characterized as natural-born citizens. It EXCLUDES them.

    Your comment from page 675 says, “all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States …” This is limited only to white persons and it’s based on a handful of cases that were influenced by state laws, such as Lynch v. Clarke, that were not universal. If this were a compelling argument, then you would agree that Gray could have stopped here, but he did not. Instead he continued his decision for another 40 pages. He went on to affirm and uphold the Minor decision and its exclusive definition of natural-born citizen which is a different term. Minor’s definition is the final place where Gray uses the term in WKA. Clearly that definition did NOT apply to Wong Kim Ark. From the point forward, Gray uses a different term — citizenship by birth — that is defined only by the 14th amendment. This is different from NBC because Gray clearly acknowledges that NBC is NOT defined by the 14th amendment (again, NBCs were excluded). Gray says so very clearly here:

    “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.” And he proceeded to resort to the common law as an aid in the construction of this provision.”

    Do you understand that?? When construing the 14th amendment, the Constitution does NOT says who shall be NBC. IOW, this says the 14th amendment does not define NOR redefine NBC. The common law, according to Gray, was only used as an aid to construct the citizen provision of the 14th amendment. It was NOT used, according to this paragraph, to define NBC in Minor. The definition that was used in Minor was a verbatim match of the law of nations definition, which can be clearly seen by putting the definitions side by side.

    Gray used common law to establish what he calls citizenship by birth, defined specifically by the 14th amendment. He says so here:

    “But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution.”

    Do you understand that?? NBC is NOT defined by the constitution. CBB is defined BY the Constitution in the 14th amendment.


  403. Re: “If everything was settled about his eligibility then we would not be having this conversation.”

    Everything is settled about his eligibility. His birth in Hawaii has been proven overwhelmingly and the meaning of Natural Born Citizen includes every US citizen born in the USA. After the first pictures of the earth taken from satellites showed that the earth was round (and there had been considerable evidence long before that of course), a few people continued to insist that it was flat.


  404. Ellen,

    You left out Stig W’s mother (Stig was born the day before President Obama at Kapiolani) who said she remembered seeing President Obama in the nursery (the only African-American baby–something uncommon at the time) with her son on CNN in April (right before President Obama whipped out his long form and broke all the birthers’ hearts…).


  405. YOUR mom must be so proud. Are you available for nights and weekends???


  406. mrjr1011, November 17, 2011 at 9:55 am

    slccraignbc,

    I am curious as to what is the definite position of those in favor of WKA case that settles who are NBC. When Justice Gray pointed out to us that we needed to look elsewhere outside the Constitution. Didnt he give us guidance that we needed to interpret it in light of the English Common Law, or is the English Statutory Law, or both?

    Well, here is where the 1st misunderstanding seems to keep popping up with few researching for real understanding of what is said and meant.

    “Common Law” if Enjglish or other is NOT a body of promulgated Laws but rather is the system by which cases and controveries are adjudicated.

    The ‘common law’ system had’hjas developed a ‘body’ of Writs, Rules and Regulations that are developed to advance varios types of ‘case and controversy’, be they civil or criminal in nature, money and property, damages and assaults, so on and so on.

    Common Law is the SYSTEM, Statutory Law regulates according to the needs of the society. They at times fall into conflic, b developed toe it by breach or in interpretation and the common law is the system developed by civil societies to aid in finding justice and or equity.

    Look, Gray in the WKA Opinion and decision is flawed in sooooo many ways that it is hard for me to give it ANY consideration except as an example of Judicial arrogance and incompetence.

    For ANY that wish to truely understand the definition, meaning and intent of the usage of the term of words, natural born Citizen, made idiom by its usage, need look no farther than the Declaration of Independence, the John Jay letter suggesting the prudent measure that the Office devolve to known but a natural born Citizen as a National Security measure, the Constitution, the 1790 Act to make an uniform Rule on naturalization and the 1795 Act repealing and revising the former.

    It is ALL right there providing each, definition, meaning and intent without any ambiguity for those willing to look oblectivly and with a modicum of intellectual honesty.

    I have waded through for the past three years reading the minutia offered as creditable interpretationsof what the U.S. Law is in regard to the definition of NBC, all of whitch I have PROVED wrong by virtue of confronting Guv’mnt Agencies and Courts seeking to be acknowledged as being an American NBC.

    If it were as the 0′poligists say that it is it should be a simple matter for a Guv’mnt agency and or Court to say so and, not withstanding the three stooges of the Akney three Judge panel making an unsupported claim as to the ’0′s status, there are ONLY “dicta and rhetoric” as to the definition that would satisfy the needs of the Constitution.

    Look, other than Mexico, I know of NO Country that does not extend “citizenship” the the children born of Citizen Parents, these are, in the words of Aristotle, the “true citizens”, although he posited it might take three of 4 generations for their production. But in all cases I have found it is the nature of the “custom, tradition and or laws’ that the children born of parents who are themselves citizens are ‘natural born citizens’. That too was the custom, tradition and “common law of England up until Queen Anne.

    Her Reign was the period in which Britain embark3d upon Empire Building and the Colonization of distant lands with the MOTTO, “Where there is a Englishman, there then is England”. To accommodate the needs of Ruling the ‘native peoples’ of the distant lands she, under the political theory of the Divine Right of Kings, deemed that all that were conquered were then “DEEMED” the Subjects of England and were considered so AS IF from birth and would remain so for life.

    But what is lost in the Lord Coke, Blackstone and from the English Statutory Laws cited by most and especially in WKA is that there were various categories of Status and Classes of denizens & subjects with ANY Public Office of the Monarchy off limits to ALL but that ‘natural born subjects’ that were indeed the prodigy of “true subjects’ and or the Royal MONARCHY across the Continent.

    In other words the nature of the American Citizen, made individually and mutually Sovereign by the adoption of the Constitution is in NO WAY synonymous with the usage of the turn of words, made idiom by its usage in the Constitution.


  407. Ellen,

    Keep pounding on the birthers for their disconnection from reality! ;-)

    I believe that the first evidence of the (local) roundness of the Earth was when ships were first able to sail out of sight of the shore–and the body of the ship disappeared before the mast. On a tangential note, we can now see where we parked our car–on the Moon! (Sadly the technology does not exist to find the keys…) That wont dissuade those that think it’s a hoax any more than bouncing a laser beam off of the Moon did. I think Buzz Aldrin got it right:


  408. I love lamp.


  409. My brother is a natural born artist but neither of our parents could draw worth a darn. Makes you think, doesn’t it? Tee Hee Hee (with apologies to Squeeky)


  410. I do doubt that all mathematicians are Pythagorus.


  411. ksdb,

    Sorry, repeating the same nonsense over and over does not make it true. Gray only mentioned Miller’s not differentiating between counsel and ministers to show such statement was not made with care. What he had issue with was the notion that children of foreign subjects were not citizens under th 14th as that would exclude Wong Kim Ark contrary to his decision. SPin all you want, he then cites Minor solely to show Miller and his court was not committed to such viesw of children of foreign subjects.

    Elk v. Wilkins doesn’t say children of foreign subjects are excluded. Such would be contrary to Gray’s WKA opinion. It equates indians to foreign born people. Pretty simple. We treat indian nations as foreign countries and poeple born in such countries are treated as born in foreign nations.

    Waite didn’t say persons of Minor’s class were excluded from the 14th. It said she didn’t need it to become a citizen. She was born before the Amendment and was already a citizen under the original Constitution. How could a child of citizens not be born “subject to the jurisdiction” of the United States under any interpretation of the rule. And it is simply a fact that Gray spend 20 pages looking at the status of children of aliens under the original Constitution before unambiguously concluding on page 675 that they were citizens. Do you just ignore stuff you don’t like? Gray may have stopped there, but the question before the Court was the interpretation of the 14th Amendment, so it is not suprising that he went on to address the 14th amendment and tell us it was declaratory of pre-existing law.

    I can’t even fathom what you point is on the common law. Waite clearly looked to the common law to define “natural born citizen.” Gray say “natural born citizen” and “citizen” are undefined and cites multiple authorities that all undefined terms must be defined by the Constitutuion. Such obviously means all the undefined terms which would include “natural born citizenship” he just mentioned. He doesn’t say “subject to the jurisdiction is not defined. Gray then goes on to tell us the definition of “natural born subject” prevailed under the Constiution and “natural born subject” and “natural born citizen” mean the same thing. Can’t you read?


  412. He’s a citizen.

    Deal with it.

    ————————-
    Prove it with what “evidence” has been offered. It has been declared as fraudulent while the so called “originals” are STILL being withheld at the tune now of $2,000,000 paid to high powered attys so that the truth of history (so seemingly desired here in these comments otherwise) will remain hidden from the citizens. This along with the government’s own e-verify flagging the SSN # used by Obama as no match with his name screams fraud. If you are a citizen OF ANY KIND NOW you don’t need to dummy up and use a phony SSN.

    A private investigation reveals that the Social Security Number being used by Barack Obama does not pass a check with E-Verify, the electronic system the U.S. Citizenship and Immigrations Services of the U.S. Department of Homeland Security has created to verify whether or not prospective employees have the required authorization to work legally in the United States.

    Over the past few years, the E-Verify system has received national attention because of its ability to determine if prospective employees are illegal immigrants who have entered the United States without the legal authority to work.

    http://politisite.com/2011/09/17/e-verify-flags-obamas-social-security-number/

    Deal with those actual facts that present themselves in the present while the OBOTS scrub, consciously deny, break any ethical standards left within them, in order to participate in the scam to the detriment of not only themselves but the entire country.

    This is not any kind of hearsay backed by Alred types that gets national coverage in order to simply smear, without facts, a fellow NBC, but the real stuff not touched by the “purists”/elitists who could care less if the Constitution is ripped and stomped upon. There is NO transparency. In fact just the opposite/the Chicago way has been installed and thuggery reigns.


  413. Komfort1, November 17, 2011 at 1:47 pm

    I do doubt that all mathematicians are Pythagorus.

    You know, with all of the dismissiveness of the needs of the Constitution insofar as the “exclusionary provision” of the Executive qualification Clause is concerned it might be instructive to “run the numbers” on which “persons” are most likely to assert fidelity to the Constitution and the Principles it espouses, including the Defense of the Nation from all enemies, foreign and domestic.

    Alien foreign national citizen/subjects of other countries,

    1st generation naturalized Citizens having taken Oath and denounced all other allegiance.

    Dual-Citizens, born or elective.

    natural born Citizens of Citizen parents.

    According to history it would be the later, however, given the state of the educational system and the advance of the radical progressives cum socialists it may not be as strong a showing as history would suggest.


  414. Re: “Prove it with what “evidence” has been offered. It has been declared as fraudulent while the so called “originals” are STILL being withheld at the tune now of $2,000,000 paid to high powered attys.”

    Okay.

    The “declared as fraudulent” was done by “experts” quoted by WND and other birther sites. Their experts included Douglas Vogt, whose autobiography, on his own Web site reads:


    About the author:
    Douglas Vogt is a geologist and science philosopher. He has funded and directed three expeditions to the Sinai desert where he was the first person since Baruch (Jeremiah’s grandson) to discover the real Mount Sinai. He discovered all the altars that Moses describes in the Torah. In addition he was the first person since Moses to see the real Abraham’s altar also located at Mount Sinai and not in Jerusalem. He has discovered the code systems used by Moses when writing the surface story of the Torah, which enabled him to decode the Torah and other earlier books of the Hebrew Scriptures.”

    In other words, he is a nut.

    And another “expert” quoted was Paul Irey, who repeatedly stated his hatred of Obama and his claim that Obama never attended Columbia University (even though Columbia stated that he did, and even graduated). In other words, he is not impartial.

    But WND never quoted these:

    Dr. Neil Krawetz, an imaging software analysis author and experienced examiner of questioned images, said: “The PDF released by the White House shows no sign of digital manipulation or alterations. I see nothing that appears to be suspicious.”

    Nathan Goulding with The National Review: “We have received several e-mails today calling into question the validity of the PDF that the White House released, namely that there are embedded layers in the document. There are now several other people on the case. We looked into it and dismissed it. … I’ve confirmed that scanning an image, converting it to a PDF, optimizing that PDF, and then opening it up in Illustrator, does in fact create layers similar to what is seen in the birth certificate PDF. You can try it yourself at home.”

    John Woodman, independent computer professional, said in a series of videos that the claims of fakery that he examined were unfounded.

    Ivan Zatkovich, who has testified in court as a technology expert, and consultant to WorldNetDaily: “All of the modifications to the PDF document that can be identified are consistent with someone enhancing the legibility of the document.”

    Nor this:

    http://www.marketwatch.com/story/tea-party-conservative-refutes-claims-of-obama-birth-certificate-forgery-2011-08-30

    More importantly, no official in Hawaii has ever said that either Obama’s short-form or long-form birth certificate is forged, and after all they are the experts. If WND really were convinced that the birth certificate was forged, it could ask to see the official copy of the long form (or for that matter the short-form, or both), the one on security paper with the seal (on the back, where it is supposed to be) and take it to such recognized experts on documents as members of the American Board of Forensic Document Examiners or the American Society of Questioned Document Experts or the Association of Forensic Document Examiners. But WND has never attempted to do this. Why not? Because the chance of the document being forged is NIL, while the opportunity to get nuts and anti-Obama zealots to claim that the document is forged is high.

    This is what is known as LYING–like the guy who went to Kenya and claimed to have gotten a birth certificate there and who never even proved that he had gone to Kenya.


  415. Sorry slcraignbc we don’t interpret the Constitution by who you think would be the most loyal. I know you caanot find any statement from a framer to suppport your position, but speculation has no place in Constitutional interpretation. You need to present facts. The facts are that the most important framers wanted no restrictions on office holde legalars and place of birth was all they discussed. The facts are that all early legal authority adopted the common law rule.


  416. How about first proving “with evidence” that President Obama has spent $2 million on these frivolous suits?

    http://motherjones.com/politics/2010/01/whats-obamas-birther-legal-bill


  417. Further to: “Re: “Prove it with what “evidence” has been offered.”

    I have just disproved the claims that the birth certificate was forged. Now to prove the place of birth. For Obama to have been born anywhere else than Hawaii, all six of the following would have to be false. But all six points are accurate:

    1. Obama’s two official birth certificates, with the state seals on them. (The official physical copy of the long-form birth certificate was handed around in the White House press room, and one reporter said that she had felt the seal and took a photo of the document.

    2. The confirmation of the facts on the two birth certificates–that Obama was born in Hawaii–by THREE Republican officials in Hawaii.

    3. The notices of Obama’s birth in the Hawaii newspapers in 1961. (The claim that the notices could have been placed by lying relatives turns out to be false because whenever there was a claim of a birth outside of a hospital, Hawaii insisted on a witness statement.)

    4. The absence of a US travel document for Obama in 1961. Nor has there been an application for such a travel document found.

    5. This witness, who recalls being told of Obama’s birth in Hawaii in Kapiolani Hospital in 1961 and writing home about http://www.buffalonews.com/incoming/article137495.ece (The birther allegation that Dr West had retired by 1961 turns out to be false).

    6. Obama’s Kenyan grandmother said repeatedly in the taped interview that he was BORN IN HAWAII, and she said in another interview (Hartford Courant) that the first that her family in Kenya had heard of Obama’s birth was in a letter FROM HAWAII.

    In addition to those six points there is very strong confirmation of Obama’s birth in Hawaii, as pointed out by Slartibartfast above. He noted that the mother of “Stig W.” (Stig Waidelich) remembers that she saw a black child in the hospital nursery at the time. Of course there are many black children, but not so many in Hawaii in 1961.


  418. I wish that this thread stays on target. It seems that relevant questions are not being discussed for some reason.

    Ballantine,

    “. 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.”

    “But if more is necessary to show that women have always been considered as citizens the same as men, abundant proof is to be found in the legislative and judicial history of the country. “

    See, the whole argument of the plaintiffs proceeded upon the idea that women must be included as all persons when defining citizenship and ..more is necessary to show. Iis necessary to show in this case that women “have always been considered as citizens the same as men”.

    and immediately after that the Court adds:

    “Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different States. Under this it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist the case must be dismissed”

    See, the case must be dismissed if citizenship is not “affirmatively shown on the record”

    Then it goes to say after a few paragraphs:

    “Other proof of like character might be found, but certainly more cannot be necessary to establish the fact that sex has never been made one of the elements of citizenship in the United States.”

    Justice Waite established the fact that gender is not undoubtedly one of the elements of citizenship.

    Again, does the above show that citizenship was not relevant to the case in Minor?


  419. Ellen,

    Give mirrose a break–it could just be stupid and willfully ignorant. I would note that John Woodman (an anti-Obama conservative) has also written a book and has a website:

    http://www.obamabirthbook.com/

    Which says that none of the dozens of forgery claims he investigate has any merit whatsoever and that the purveyor of the POSFKBC (Piece Of Shit Fake Kenyan Birth Certificate–as it is commonly known) is Lucas Daniel Smith (it’s an open question whether or not he forged it or is just trying to use it in a con). By the way, if you need to prove that it is a fake, just looking at it with any degree of objectivity will do the trick, but these are some of it’s flaws:

    Baby footprints

    Hospital administrator’s name misspelled on stamp (commonly misspelled in many sources which a forger may have come across…)

    Wrong administrator when the document was allegedly explained

    height/weight on form (atypical)

    shoulder width on form (unusual statistic–I know of no other example of it being on a birth certificate)

    statistics combine to be outside the norm of human variation (unlike President Obama)

    incorrect date format (US not UK)

    completely different than known (and rather distinctive) Kenyan birth certificates

    A dramatization of what “I, Lucas Smith” claims:

    http://www.thefogbow.com/forum/viewtopic.php?f=24&t=3806#p132113


  420. @ballantine: You said:

    “SPin all you want, he then cites Minor solely to show Miller and his court was not committed to such viesw of children of foreign subjects.”

    Sorry, but this is nonsense. The quote says the court was “committed to the view” that such persons were EXCLUDED. It doesn’t say the court was NOT committed. A judgment that is UNANIMOUS expresses a very strong commitment, and the decision in Minor was the 14th amendment did NOT confer citizenship on Virginia Minor nor to women as a class. The Elk decision was also clear that for persons to be included in the citizenship clause in the 14th amendment that such persons had to be:

    “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance;”

    Elk continued:

    “And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.”

    The only way Gray could satisfy that Wong Kim Ark was completely subject to the political jurisdiction of the U.S. was by including the permanent residence and domicil criteria. After all, he included the same residence criteria in Elk v. Wilkins:

    “in the United States and subject to the jurisdiction thereof” were not intended to embrace Indians born in tribal relations, but who subsequently became bona fide residents of the several states …”

    You said: “Waite clearly looked to the common law to define “natural born citizen.”

    Please show which part of the common law that Waite looked at. I’ll Waite.


  421. Komfort,

    You get an “F” for that answer and I’m starting to suspect that you can’t say “shibboleth”…


  422. Now, for those of you who still believe that Obama could have been born somewhere else than in Hawaii, a question for you:

    I’ll bet that you know (but probably have forgotten) that the US government requires, and has long required, that a child being carried into the USA requires some kind of official travel document to be admitted. This is usually a US passport for the child. Or, it could be the fact that the child is entered on the mother’s US passport. Or, it could be a US visa for the child on a foreign passport. Without one of those, we would not let the child into the country.

    So, IF Obama really had been born in Kenya (or in any country other than the USA), he would have had to have one of those documents–wouldn’t he? His family would have had to show the passport, wouldn’t they? To show the passport, they would have had to have applied for the passport or the visa for Obama. And, if Obama really were born in Kenya (or another country), they would have had to have applied for it in the US consulate or embassy there, wouldn’t they?

    Such applications are FILED by the US government. The documents exist in multiple files, the actual application itself, communication about it with Washington, entries in the passport file, entries in the application file, entries in the places where the child is carried into the USA. The Bush Administration was in charge of the State Department and the INS for eight years before Obama was elected. Don’t you think that they would have checked the claim that he was born outside the USA?

    All they had to do was find one of those files and McCain would win the election.

    Well, they never did. There is no such file.

    So the question is, do you think that the Bush Administration was part of the plot? Do you think that the files, the documents, the application for the documents, the communications about the documents were all lost or hidden? Remember, they are in multiple files, the file of the passport holder, the files of applications for passports, the files in the US embassy in foreign countries, the files in the State Department and in the INS (which would have checked in Obama at an entry point if he had actually traveled in 1961)–and yet no document has been found. Why not?

    The absence of the travel document, plus the Hawaii birth certificate, plus the notices in the Hawaii newspapers, plus the witness who remembers writing home, plus Stig W’s mother. Want more proof?


  423. “Out, out, prolix birthers! Birtherism’s but a walking shadow, a poor player that struts and frets his hour upon the stage and then is heard no more: it is a tale told by an idiot, full of sound and fury, signifying nothing.” – Macbeth (Act V, Scene V).

    Would you like some dead horse with that?


  424. “Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different States. Under this it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist the case must be dismissed”

    See, the case must be dismissed if citizenship is not “affirmatively shown on the record”

    Then it goes to say after a few paragraphs:

    “Other proof of like character might be found, but certainly more cannot be necessary to establish the fact that sex has never been made one of the elements of citizenship in the United States.”

    Justice Waite established the fact that gender is not undoubtedly one of the elements of citizenship.

    Again, does the above show that citizenship was not relevant to the case in Minor?”

    No. This was not a diversity case, so citizenship was not relevant to jurisdiction in this case. Minor was not a citizen of a different state than the defendant. This was a federal question. The Minor Court was actually pointing out that citizenship is necessary in diversity cases and, in all the multitude of such cases, no one had ever suggested women were not citizens for purposes of jurisdiction.

    “If found not to exist the case must be dismissed. Notwithstanding this the records of the courts are full of cases in which the jurisdiction depends upon the citizenship of women, and not one can be found, we think, in which objection was made on that account.”

    Such citation is not talking about jurisdiction of the Minor case. Again, if determination of citizenship was necessary, why didn’t the Missouri Supreme Court even mention Minor’s citizenship status when addressing the same question as the Supreme Court? Why didn’t other Supreme court decisions addressing questions of whether citizens had certain rights address their citizenship status. Simply stated, if citizenship is not necessary to answer the question presented it does not need to be address and issues not raised are waived.


  425. ellen
    1, November 17, 2011 at 2:04 pm
    ——————————–
    You were able to provide us with the originals so that there can be no longer differing assessments of electronic pictures only? Didn’t think so. Of course, to demonstrate your good will, you might try, but I’ll simply warn…you won’t get very far with this “transparent” office holder and his willing obfuscators, including his personal mouthpiece media!!!

    And those “images” (which you appear to certainly desire to trust with every fiber), suddenly forced to present themselves as exact copies of originals held in secret, differ in fact with the prior and recent to their presentation description by HI DOH official herself on national TV (oops!), of same originals which she had witnessed and which these so called “copies” were to exactly represent. Her description of such, as witnessed by herself was that they were (and still are apparently then) “partially written and partially typed”.

    “They’re going to question the ink on which it was written or say it was fabricated,” said Fukino.
    ……..Fukimo said she has personally inspected it — twice.
    …….She found the original birth record, properly numbered, half typed and half handwritten, “

    http://www.msnbc.msn.com/id/42519951/ns/politics-more_politics/t/ex-hawaii-official-denounces-ludicrous-birther-claims/

    So where is the exact match? Ahh, ye of so easy trust, even after the immense amount of error exposed via those who don’t so easily trust.

    And you who doubt the amount of filthy lucre “earned” during 3 and more years of defending the secrets? Check out the high powered firm used in all the litigation and their rates….they aren’t paid peanuts since only money speaks to these types. Just the mere request of the entrance forms to Occidental, with the admission by the officials there as legal, was met with strong “threat” for monetary payment if such request were not withdrawn. So what is our “guy” so fearful of as demonstrated by his extreme lack of “transparency” that EVERYTHING of his past remains without backup of support in fact?? What are you as well so fearful of finding that you too would support such duplicity?

    Didn’t see any refutation of your own gov’s site that shows you more of the error of fraud….what about “no match” flagging don’t you conveniently get?

    And people want to spend sweat on what isn’t as blatant and what is only historical and not as yet clearly defined when you have this in the present staring you in the face as evidence of fraud? Go figure.


  426. Ballantine,

    You said: “Why didn’t other Supreme court decisions addressing questions of whether citizens had certain rights address their citizenship status. Simply stated, if citizenship is not necessary to answer the question presented it does not need to be address and issues not raised are waived.”

    Perhaps because their whole argument did not proceed upon that idea?

    ““. 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.”


  427. Re: “the high powered firm used in all the litigation and their rates….they aren’t paid peanuts since only money speaks to these types.”

    Odd that you should not remember it but law firms are hired to do a lot of things, not just defend birther cases. For example, during a presidential campaign, the campaign has to rent a lot of offices, and the law firms have to check the contracts. I read somewhere that McCain’s campaign spent some $1.2 million on its legal representation, and it had hardly any birther cases to defend.

    Now as to the estimated cost of defending birther cases. The law firm would get some tens or twenties of thousands of dollars to defend the first case (but I understand that some were done pro bono), and then they would file THE SAME LEGAL PAPERS to get all the other cases thrown out. Not much money involved. Yet you were ready to believe that there was millions.


  428. @ellen

    1. The seals on Obama’s alleged birth certificates do NOT match the official seals as described in the HI DOH’s own rules:

    http://hawaii.gov/health/about/rules/prac_proc.pdf

    2. There was no legal confirmation in a court of law by ANY Republican official. Remember, a bona fide birth certificate is considered to be self-authenticating in a court of law (which is why a COLB says it is prima facie evidence in any court proceeding). To date, neither of the two alleged birth certificates has been presented in ANY court proceeding.

    3. The so-called notices of birth in the Hawaiian newspapers do not list a place of birth. The notices only prove that a birth was registered with the state. We all know that the state rules in Hawaii allow the registration of out-of-state births.

    4. There’s still an absence of legal evidence Obama was born in Hawaii or that he was EVER in Hawaii in 1961. The travel documents requested for Obama’s mama were conveniently missing for all dates prior to 1965. This simply leaves open a myriad of unanswered questions.

    5. This story identifies Rodney West as the “obstetrician” who delivered Obama. The shiny, brand new birth certificate PDF was not signed by this doctor. It relates that story as happening sometime during the day (Obama was born at night). There are plenty of holes in this story.

    6. The grandma did NOT repeatedly say Obama was born in Hawaii. The interpreter was the one who made this claim.

    7. The mother of Stig W. story is pretty weak. Obama’s mama’s friend Susan Blake described baby Obama as pink, not black. It’s doubtful that the baby would have stood out from any others if it was indeed born at Kapiolani, especially since Obama’s father wasn’t there.


  429. mirrose,

    The veracity of the COLB and the LFBC are unassailable in court and their validity has been confirmed (among numerous other times) in sworn testimony to the Hawai’ian legislature by the head of the only body qualified to determine the validity of Hawai’ian birth certificates.

    Are you lying, willfully ignorant, or just hard of thinking? I’m guessing all three.


  430. Re: “You were able to provide us with the originals so that there can be no longer differing assessments of electronic pictures only? Didn’t think so”

    The legal copy of a birth certificate is not the original in the files. That would be damn inconvenient to use as proof of birth because it is never taken out of the files. The legal copy of a birth certificate is the official physical copy on security paper. THAT has been shown in the White House and numerous reporters there got a chance to see it, hold it, and even feel the seal on it. One even photographed it. The AP photographed the Xerox copy of it.

    If WND or another birther organization thought that there was anything wrong with Obama’s birth certificate, it could ask to see the official physical copy. If the Obama team rejected that request, the organization would then report that fact. Or, if the Obama representatives did give the birth certificate, WND could take it to such organizations as the American Board of Forensic Document Examiners or the American Society of Questioned Document Experts or the Association of Forensic Document Examiners. But that has not been done.

    Wonder why not? Because they prefer to lead the credulous around with the claims of “experts”.


  431. By the way, mirrose, you haven’t answered the question about why, if Obama were born outside of the USA, no travel document has been found.

    Nor have you been able to explain the birth notices in the Hawaii newspapers. (Don’t say that they were ads because Hawaii newspapers did not take birth notice ads at the time.)


  432. Re: “We all know that the state rules in Hawaii allow the registration of out-of-state births.”

    Actually, Hawaii did not allow that in 1961, and it did not send out notices of birth for births outside of Hawaii, only for births inside of Hawaii.


  433. “Sorry, but this is nonsense. The quote says the court was “committed to the view” that such persons were EXCLUDED. It doesn’t say the court was NOT committed. A judgment that is UNANIMOUS expresses a very strong commitment, and the decision in Minor was the 14th amendment did NOT confer citizenship on Virginia Minor nor to women as a class.”

    Gibberish. I hope you are not a lawyer. Gray said:

    “That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment…”

    He says neither Justice Miller nor the court was committed to the view that children of aliens were excluded. That means they were not committed to such view. DUH. The Minor Court did not confer citizenship on Minor under th 14th Amendment because she was born before the Amendment as was already a citizen by birth under the original Constitution. It earlier states that women were obvisouly citizens under the 14th Amendment but goes on to say they were already citizens under the original Constitution. You are simply being dishonest to claim it says a citizen under the original Consitution is excluded by the 14th Amendment. Obviously one can be a citizen under both. In fact, basic statutory construction makes clear that the 14th Amendment would supersede any earlier definition of citizenship.

    The Elk decision was also clear that for persons to be included in the citizenship clause in the 14th amendment that such persons had to be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance;”

    Yes and no one said children of aliens were not subject to political jurisdiction nor did anyone in the 39th Congress.

    “The only way Gray could satisfy that Wong Kim Ark was completely subject to the political jurisdiction of the U.S. was by including the permanent residence and domicil criteria. After all, he included the same residence criteria in Elk v. Wilkins: “in the United States and subject to the jurisdiction thereof” were not intended to embrace Indians born in tribal relations, but who subsequently became bona fide residents of the several states …”

    Again, you are making stuff up. Gray never states in WKA that permenant residence is necessary as his citation of Coke and temporary allegiance demonstrates. “Residence” can be either permenant or temporary and no one suggested it must be permenant to confer citizenship or political jurisdiction. Elk never defines what “complete, political jurisdiction” means, nor did anyone in the 39th Congress. “Complete jurisdiction” was only used to refer to indians who lived in territory we did not fully control. Neither Gray nor anyone in Congress said that aliens born on our soil were not completely within our political jurisdiction. Gray’s defintion of the 14th Amendment:

    “The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.”

    It says “including all children here born of resident aliens,” not that the ancient rule was limited to resident aliens which clearly it was not. Gray tells us we are looking to the common law of Coke and “[h]is allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” Temporary allegiance is clearly sufficient.

    The facts simply are that nothing in Elk or Wong Kim Ark says children of foreign subjects are excluded from citizenship or that the parents need to be permenant residents or citizens, which is why we have anchor babies today.


  434. ksdb,

    You are completely full of crap like all of the other incompetent birthers on this site. Your pathetic lies aren’t even worth addressing.

    Moron.

    ellen,

    Dr. Fukino said under oath that President Obama had posted an image of his (valid) birth certificate to his website as well. This statement falls under penalty of perjury, I believe (testimony to the Hawai’ian legislature). Also, Hawai’i has never issued birth certificates to persons born out-of-state that say they were born in Hawai’i*.

    If you want to really confound birthers, ask them to explain the numbering on the BCs of Stig, the president, and the Nordyke twins–it is simply explained by the BCs being numbered in roughly monthly batches after being alphabetized by last name. The numbering is: N,N,(small gap),O,(large gap),W. The birthers can’t come up with any reasonable explanation for this pattern which matches the alphabet pretty damn well (evidence that the birthers don’t understand the alphabet–good for Squeeky trying to help them upthread!).

    * Incidentally, this statement is like chumming the water for sharks–don’t tell any of the birthers and we’ll see if they take the bait…


  435. @ ellen, there’s nothing in the law that says the state did not send out notices of birth for births outside of Hawaii. The registrations only go by place of residence, not by where the birth occurred. The address in the newspaper report was allegedly Obama’s grandparent’s residence. It’s very typical for college students to list their parents’ address as their own permanent address. The 1961 Natality Report says 100 births in Hawaii occurred outside of hospitals or without an attendant and there were more total births for the state of Hawaii then were births listed by county of occurrence. This differential allows for 38 births outside of the state. And again, there is nothing in the law that prevents the registration of out-of-state births.


  436. Re: “The seals on Obama’s alleged birth certificates do NOT match the official seals as described in the HI DOH’s own rules:”

    Answer: That is what YOU say. Do you have any confirmation? Neither the current officials in Hawaii nor anyone else has said that there is any difference between the official seal on Obama’s birth certificate and what is supposed to be there. HOWEVER, if you really believe that the seals are different, then why not ask to see the official physical copy and take it to be examined by the American Board of Forensic Document Examiners or the American Society of Questioned Document Experts or the Association of Forensic Document Examiners?

    Re: “There was no legal confirmation in a court of law by ANY Republican official. Remember, a bona fide birth certificate is considered to be self-authenticating in a court of law (which is why a COLB says it is prima facie evidence in any court proceeding). To date, neither of the two alleged birth certificates has been presented in ANY court?

    Answer: So what? THEY SAID IT. And no official of any kind has made a statement about George Bush’s birth certificate. If the officials had said that the birth certificate were forged, THEN it would go to court, but they didn’t. (Why haven’t any of the Republican candidates shown their birth certificates????)

    Re: “The so-called notices of birth in the Hawaiian newspapers do not list a place of birth. The notices only prove that a birth was registered with the state. We all know that the state rules in Hawaii allow the registration of out-of-state births.”

    Answer: They did not allow registration of out of state births in 1961, and they did not send out notices of birth for persons born outside of Hawaii. When there was a claim that there was a birth outside of a hospital, they insisted on a witness statement—so they could not have been fooled by relatives.

    Re: “The travel documents requested for Obama’s mama were conveniently missing for all dates prior to 1965. This simply leaves open a myriad of unanswered questions.”

    Answer: Birthers did not even ask to see Obama’s mother’s passport details in the file. They only asked to see the APPLICATION for the passport in the files. The passport document is in the files, but they didn’t ask to see it. The applications in the file were eliminated—but then millions of such applications were scrapped to save space in the 1970’s or 1980s. The FACT is that if Obama were born out side of Hawaii, he would have had to have a travel document in 1961—and no such document has been found. And he would have to have been checked into the USA by the US Immigration Service in 1961, and no such record has been found.

    Re: “This story identifies Rodney West as the “obstetrician” who delivered Obama. The shiny, brand new birth certificate PDF was not signed by this doctor. “

    Answer: The story made an error about who the delivery doctor was. Rodney West was HEAD OF OBSTETRICS at the hospital, He talked about a delivery at the hospital. That the reporter thought that the delivery was by him; that is is a mistake. The fact is that the teacher remembers Rodney West saying it and writing the letter about it to her father.

    Re: “The grandma did NOT repeatedly say Obama was born in Hawaii. The interpreter was the one who made this claim. “

    Answer: Sure, everything went through the interpreter. You don’t believe the interpreter? Okay, you don’t—big deal. In fact, the grandmother was also interviewed by the Hartford Courant newspaper, and it reported (again using an interpreter—what else) that she had said that the first that her family in Kenya had heard of Obama’s birth was in a letter from Hawaii. A LETTER FROM HAWAII.

    Re: ‘ The mother of Stig W. story is pretty weak. Obama’s mama’s friend Susan Blake described baby Obama as pink, not black.”

    Answer: Okay, I have no idea whether Obama was pink or black. The fact is that the Stig W definitely was born at Kapiloani Hospital because he has shown his birth certificate, and his mother says that she noticed a black child. You think that she is making it up? Okay you do.

    You think that she is lying, and the teacher who wrote home about the birth is lying, and the officials in Hawaii are lying, and the interpreter is lying, and the absence of a travel document can be explained, and the notices in the newspaper are due to the government of Hawaii sending out a notice of a birth outside of Hawaii. Are you birthers nutty, or do you have a motive?


  437. @ Slartibartfast, sorry but this is lame and lazy.

    Second, Chiyome Fukino never said anything about Obama’s alleged birth certificate under oath. She presented a written statement. The stuff about numbering in “batches” is outright BS.


  438. ellen,

    Reality Check did an interview of a Questioned Document Examiner on his web radio show a while back–it was very interesting (and supports your point about what the birthers should have done if their allegations had merit).

    ksdb,

    What you just demonstrated was an attempt to lie with statistics. Badly. You should be ashamed at your pathetic attempt to propagandize.


  439. ellen,

    I think they have a motive.


  440. Re: “there’s nothing in the law that says the state did not send out notices of birth for births outside of Hawaii.

    Answer. Of course not. Do you think that they had to have a law that said that they could or could not send out notices of people born outside of Hawaii. They just didn’t. That was not the procedure. The procedure was to send out notices of birth of children born in Hawaii. And besides in 1961 a child born outside of Hawaii was not registered in Hawaii, so the officials in Hawaii would not have a record of the birth to send to the newspapers.

    Re: “The address in the newspaper report was allegedly Obama’s grandparent’s residence. It’s very typical for college students to list their parents’ address as their own permanent address.”

    Answer. I agree. The address given was an address where the couple could be contacted. Maybe they hadn’t gotten an apartment yet. Are you claiming that the birth took place at that address and not at Kapiolani Hospital? If so, the witness who wrote home says Kapionali. So does the birth certificate, so do the present and former governors of Hawaii, etc.

    Re: “The 1961 Natality Report says 100 births in Hawaii occurred outside of hospitals or without an attendant..”

    Answer: Yes, and when the child was registered with the government THE GOVERNMENT REQUIRED A WITNESS STATEMENT.

    Re; “And again, there is nothing in the law that prevents the registration of out-of-state births.”

    Answer: The law in 1961 said that the DOH registered the births that were IN the state. It did not say that the DOH should or could register births outside of the state. The law was changed in 1982 to allow that, but before 1982 it was not allowed.


  441. ksdb,

    I’m sure someone will correct me if I’m wrong, but I believe that written testimony to the Hawai’ian legislature falls under penalty of perjury (and that you are a lying bigot). If you don’t like my hypothesis (originally put forward by Doc Conspiracy who has extensive experience in record keeping), then come up with one that fits the facts better. Since I know you can’t do it, I’ll just say that your response to this comment is just another example of your bad faith.

    As for being lazy, what is there in the crap you’ve posted that’s worth me taking any more time than I do to expose?


  442. Re: “Second, Chiyome Fukino never said anything about Obama’s alleged birth certificate under oath. She presented a written statement.”

    Answer: Why, if there is no proof that Obama was born outside of the USA, not even a travel document, should Fukino make a statement under oath?


  443. ellen,

    Even after 1982, a certificate for an out-of-state birth wouldn’t list “Honolulu” as the place of birth.


  444. Re; “Even after 1982, a certificate for an out-of-state birth wouldn’t list “Honolulu” as the place of birth.”

    That is right. And both the short-form and the long-form birth certificates do list Honolulu as the place of birth, confirmed by the officials, confirmed by the teacher who wrote home, confirmed by the grandmother who said that the first that her family had heard of Obama’s birth was in a letter from Hawaii, confirmed by Stig W’s mother, etc.


  445. @ ellen, did you go to the link I provided?? The seal is clearly explained. Neither seal on the alleged birth certificates match this description. I don’t need to take anything to the American Board of Forensic Examiners as there is nothing to show them.

    2. George Bush is a deflection. One of the Republicans who vouched for Obama’s birth certificate, former HI Gov. Linda Lingle, told an outright lie:

    “You know, during the campaign of 2008, I was actually in the mainland campaigning for Sen. McCain. This issue kept coming up so much in the campaign, and again I think it’s one of those issues that is simply a distraction from the more critical issues that are facing the country. And so I had my health director, who is a physician by background, go personally view the birth certificate in the birth records of the Department of Health, and we issued a news release at that time saying that the president was, in fact, born at Kapi’olani Hospital in Honolulu, Hawaii.”

    The news release that came out “during the campaign” was only released a few days before the election. It only said that an original birth certificate was “on record.” It did NOT says the president was born at Kapiolani Hospital nor that he was born Hawaii, nor that his alleged COLB was genuine. Lingle lied.

    3. The law does NOT prevent the registration of out-of-state births. I’ve already shown that the total number of births for the state of Hawaii exceeded the numbers of birth as occuring within Hawaii.

    4. Sorry, but this is a bunch of rambling nonsense. The State Department claimed the pre-1965 passport records had been destroyed, even though others have been able to obtain their own family’s pre-1965 records. There are no paper trails to show that any legitimate directive was given to destroy such records.

    5. The only fact is that we have someone whose story has a bunch of holes. If Rodney West was an administrator at the hospital, he most likely left before any baby was born. Obama was born at night. He wouldn’t have a story to report to anyone. Sorry, but it’s nothing but a bunch of hot air.

    6. When did the Hartford Courant do the interview?? Let’s see this story.

    7. I don’t care about stories that magically appear ONLY after there’s a controversy and huge unexplained holes in the Obama backstory. Stig W. magically showed up when there was no logical explanation for Obama’s out-of-sequence birth certificate number. Barbara Nelson showed up when there were no witnesses to corroborate the Kapiolani story. Sorry, this stuff is a little too convenient to be credible. And each one is countered by things like Michelle “birther” Obama who said Kenya is her husband’s home country and that he returned there at a time when he hadn’t allegedly been there before. It’s countered by an Aug. 31, 1961 immigration record in which Barak Sr. fails to list having any children, and a year later, only claims one child: Roy, not Barry.


  446. Slarts,
    Good work here, but didn’t the courts already throw out these birther claims?


  447. Re: “Michelle “birther” Obama who said Kenya is her husband’s home country.”

    Answer, she didn’t. She never said any such thing. IF Obama actually were born in Kenya, how did he get from Kenya to the USA without a travel document? How come he wasn’t checked into the USA by the US Immigration Service?


  448. @ Slartibartfast, Take a look at Chiyome’s statement to the Hawaii legislature.

    http://www.capitol.hawaii.gov/session2010/Testimony/SB2937_TESTIMONY_JGO_02-23-10_LATE.pdf

    She wrote: “For more than a year, the Department of Health has continued to receive approximately 50 e- mail inquiries a month seeking access to President Barack Obama’s birth certificate in spite of the fact that President Obama has posted a copy of the certificate on his former campaign website.”

    Sorry, but this doesn’t say Obama posted a CERTIFED birth certificate. It doesn’t say the alleged COLB is accurate. And it is an intentionally misleading statement. The inquiries aren’t “in spite” of the certificate that was posted, it was because there were serious questions about the authenticity of the alleged certificate. She also neglects to mention that she had statutory authority to disclose any and all records to address these inquiries. The Uniform Information Practices Act in Hawaii allows for the disclosure of any private records if it is outweighed by the public interest. Well, duh, if the DOH was getting 50 e-mail inquiries a month, then there was substantial public interest.

    BTW, you’re doing yourself a huge disservice if you go by anything the self-name “Dr. Conspiracy” posts. This guy has been debunked thoroughly on many occasions. He does nothing but make lazy excuses.


  449. @ellen, you’re ignoring that I’ve already explained that the state deparment claims the pre-1965 documents were destroyed. Obama would have traveled with his mother (since she took him off her passport in 1967 or 1968 — when he was listed as “Soebarkah.”). The lack of a record doesn’t prove he didn’t travel. It’s just another hole in the Obama birth myth. We don’t have a travel record to show that he went from Hawaii to Washington state either, but we do have a witness who saw him there as new, pink baby with a mother who didn’t know how to change the baby’s poopy diapers. Like the diapers, everything about the Obama myth stinks.


  450. Hi raff! Thanks! (that wasn’t math above–it was just logic–really! ;-)

    I believe that the current scorecard is something like 0-75, but Orly Taitz (who still has yet to be disbarred) has filed in New Hampshire and I’m guessing we’ll have a steady stream through primary season increasing into the general, so I bet they’ll reach the century mark by election day…

    ellen,

    I came up one short of two dozen for the number of errors of fact, obfuscations, logical fallacies, and outright lies in ksdb’s post at 4:34pm–how about you? Wait a second… two dozen… minus one… that’s… 23! Oh no–ksdb is an Illuminati agent! Whatever will we (fnord) do?

    ksdb,

    You haven’t contributed a single true or insightful statement to this discussion–why should anyone respond to you?


  451. as pointed out by Slartibartfast above. He noted that the mother of “Stig W.” (Stig Waidelich) remembers that she saw a black child in the hospital nursery at the time.
    ——————————–
    ooh wow! Now there you go….for sure ROFL! Thank God that HI was chosen as THE go to place for “trustworthy” info….many tittles have been tattled BUT the original nowhere to be seen….hmmm why? And thank God also for O that his defenders are simply lemmings of useful service to the secrets. A little of that “willful ignorance” as prescribed to myself above with no refutation of the facts presented?:

    As an island nation, Hawaii has had procedures in place to allow for “stragglers” who were born on other islands, or in other countries (Guam is similar, BTW). Such is the “loophole” Sun Yat-sen exploited, Chinese revolutionary and political leader often referred to as the “Father of Modern China.” He was able to file a “Certificate of Hawaiian Birth” application and immigrate to the US in 1904 using the form. Yat-sen was born in Guangdong province, China, in 1866. His “Certificate of Hawaiian Birth” was issued based on Sun’s typewritten testimony rather than on any documentation from witnesses. The “Certificate of Hawaiian Birth” for WAS STILL ISSUED UP UNTIL 1972; BHO was born in 1961.

    ……..This Certificate of Hawaiian Birth, dated March 14, 1904, was issued after Dr. Sun signed a raggedy type-written statement affirming that he was born in Hawaii on Nov. 24, 1870.

    Sun Yat-sen was born on November 12, 1866, to a peasant family in the village of Cuiheng, Xiangshan county , Guangzhou prefecture, Guangdong province (26 km or 16 miles north of Macau), not Hawaii, as this document affirms.

    We know Maya Soetoro-Ng, Obama’s sister has a Hawaiian Certification of Live Birth too, and she was born in Jakarta, Indonesia. You can be born anywhere and get one.

    http://theobamafile.com/ObamaCOLB.htm

    The exploitation of such a “system” is quite evident in the obvious lack of any basis in fact with backup material worthy of the tale …. other than hearsay stuff proclaimed and easily manipulated by the rather confused family who itself can’t even get the simple fact of just which hospital this marvellous story occurred, or, for that matter which country! Two different ones claimed by brother and sister themselves in the one country people here wish to accept and another one across the sea claimed by that other “family” member! With this bunch that swampland in Florida could be sold many times over!!


  452. Slarti and raft:

    Do not forget the suits already filed by the Liberty Legal Foundation. Here is the federal suit:

    http://libertylegalfoundation.org/wp-content/uploads/2011/10/Federal-DNC-Complaint.pdf

    I bet their name comes from the fact they take “liberties” with “legal” stuff.

    Squeeky Fromm
    Girl Reporter


  453. Re: “Ellen, did you go to the link I provided?? The seal is clearly explained. Neither seal on the alleged birth certificates match this description. I don’t need to take anything to the American Board of Forensic Examiners as there is nothing to show them.

    Answer: Once again it is only you who say that there is a difference between the seal on the Obama document and the official seal. There is no confirmation. If you want confirmation, the way to do it is to get a real document specialist or several to look at it.

    Re: “George Bush is a deflection.”

    I disagree. Birthers have made up a story about Obama being born outside of the country. I pointed out that it was not normal before their unsubstantiated claim to examine birth certificates. That is still the case. None of the Republican candidates for president has shown her or his birth certificate, much less have it examined. Do I have to make up a story about them so that they show birth certificates and have them examined? If so, that is easy to do.

    Re: “One of the Republicans who vouched for Obama’s birth certificate, former HI Gov. Linda Lingle, told an outright lie:”

    Answer: Sure she did. I suppose the other two (Fukino and Okada) did too?

    Re: “we issued a news release at that time saying that the president was, in fact, born at Kapi’olani Hospital in Honolulu, Hawaii.”

    Answer: An error, not a lie. Say that they had prepared a draft press release including the name of the hospital, and it was looked at by the lawyers and the lawyers said that they could not give those details but the governor had only seen the draft press release. The fact is that the press release said that there was a record of Obama in the files, and a subsequent press release said that the records in the files VERIFIES that Obama was born in Hawaii.

    Re: “The law does NOT prevent the registration of out-of-state births. I’ve already shown that the total number of births for the state of Hawaii exceeded the numbers of birth as occuring within Hawaii.”

    Answer: The law prevented the registration of foreign births. The law allowing registration of foreign births did not come into force until 1982.
    Re: “The State Department claimed the pre-1965 passport records had been destroyed, even though others have been able to obtain their own family’s pre-1965 records. There are no paper trails to show that any legitimate directive was given to destroy such records.”

    Answer: IF the State Department were lying, the people who worked at the State Department at the time could refute the statement, and no one has. It is completely believable that applications for passports were scrapped to save space.

    Re: “The only fact is that we have someone whose story has a bunch of holes. If Rodney West was an administrator at the hospital, he most likely left before any baby was born. “

    Answer: Sure he did. All that had to have happened was that the doctor or a nurse told West, who thought that the name was interesting and remembered it, and told the teacher. For the teacher to have made up the story she would have had to have researched the name Rodney West and, conveniently, changed the name of her father to Stanley so that she could say that she wrote home to her father Stanley about a birth to a woman named Stanley.

    Re: “When did the Hartford Courant do the interview?? Let’s see this story.”

    Glad you asked:

    “Six months after they wed, another letter arrived in Kenya, announcing the birth of Barack Hussein Obama, born Aug. 4, 1961. Despite her husband’s continued anger, Sarah Obama said in a recent interview, she “was so happy to have a grandchild in the U.S.” (

    http://www.courant.com/news/nationworld/world/chi-0703270151mar27-archive,0,2145571.story?page=4


  454. Squeeky,
    That complaint is pure science fiction. The attorney who filed it should be ashamed of him/herself.
    Slarts,
    Thanks for keeping the math out of it!! :)


  455. @ Slartibartfast, name-calling is lazy. I’ve sourced much of what I posted. Did you read the Fukino “testimony”?? Where does it say that Obama’s alleged COLB was genuine or that it was even a “certified” copy??? She claims she couldn’t disclose any information about these records. Here’s what the law says:

    “Index data consisting of name and sex of the registrant, type of vital event, and such other data as the director may authorize shall be made available to the public.”

    Do you see the part that says AS THE DIRECTOR MAY AUTHORIZE. The part about the direct and tangilbe interest has an exception. It says:

    ” except as authorized by this part or by rules adopted by the department of health.”

    Under the rules adopted by the DOH (of which the director has broad authority), it says that an abbreviated copy of a birth certificate can be released to ANY person requesting it (see page 4 of chapter 8B in the link below):

    http://gen.doh.hawaii.gov/sites/har/AdmRules1/8%208A%20B%20VR%20Admin%20Rules.pdf

    Why didn’t Fukino explain any of this to the HI legislature in her statement? Try to focus on that, as there is a serious attempt here by the DOH to withhold information and documentation that can legally be made public.


  456. Re: “We know Maya Soetoro-Ng, Obama’s sister has a Hawaiian Certification of Live Birth too, and she was born in Jakarta, Indonesia. You can be born anywhere and get one.”

    That also turns out to be false. A prominent birther, Leo Donofro, did some excellent work using the Hawaii version of the Freedom of Information Act (whose name I forget), and he found out that Maya did not even have a file in the Hawaii birth registry files.

    It is true that after 1982 Hawaii allowed, and still allows, people who have children out of state to have their births registered in Hawaii. But Obama was born before 1982, and the law does not allow such a registration to lie about the place of birth. In other words, IF Maya had had a Hawaii BC, it would say “Hawaii BC: Place of Birth: Indonesia.”


  457. ellen,

    When I posted this:

    Slartibartfast
    1, November 17, 2011 at 3:57 pm
    ksdb,

    You are completely full of crap like all of the other incompetent birthers on this site. Your pathetic lies aren’t even worth addressing.

    Moron. [Gratuitously left in to insult ksdb a second time...]

    ellen,

    [snip]

    Hawai’i has never issued birth certificates to persons born out-of-state that say they were born in Hawai’i*.

    [snip]

    * Incidentally, this statement is like chumming the water for sharks–don’t tell any of the birthers and we’ll see if they take the bait…

    I was referring to someone bringing up this:

    As an island nation, Hawaii has had procedures in place to allow for “stragglers” who were born on other islands, or in other countries (Guam is similar, BTW). Such is the “loophole” Sun Yat-sen exploited, Chinese revolutionary and political leader often referred to as the “Father of Modern China.” He was able to file a “Certificate of Hawaiian Birth” application and immigrate to the US in 1904 using the form. Yat-sen was born in Guangdong province, China, in 1866. His “Certificate of Hawaiian Birth” was issued based on Sun’s typewritten testimony rather than on any documentation from witnesses. The “Certificate of Hawaiian Birth” for WAS STILL ISSUED UP UNTIL 1972; BHO was born in 1961.

    I assume this is supposed to be persuasive because the document standards for an island nation in 1904 are such strong precedent for documents in a US state in 1961…

    mirrose,

    Thank you for providing a wonderful example of how predictable and incompetent birthers are. You did a very good job! ;-)


  458. rafflaw:

    Yes, it is science fiction. Long ago, on a planet far away, named Minor Happersett 4, a group of space cadets. . .OH that reminds me of the Mars Need Vattel Birthers thingie!

    http://birtherthinktank.wordpress.com/2011/10/07/mars-needs-vattel-birthers-do-you-have-what-it-takes/

    Tee Hee! Tee Hee!

    Squeeky Fromm
    Girl Reporter

    (PS: Stuff like this is why the Vattle Birthers just hate me.)


  459. raff,

    I have yet to see the birther that feels shame–I think that feedback loop needs to be broken before you can become a birther…


  460. Re; “Obama would have traveled with his mother (since she took him off her passport in 1967 or 1968 — when he was listed as “Soebarkah.”). The lack of a record doesn’t prove he didn’t travel.”

    Yes, he would have traveled with his mother, but he would have had to have been entered on her passport (unless issued one of his own, which is unlikely) or a US visa on a foreign passport. If this was done in Kenya, as claimed, the application for the passport, passport change or visa would have had to have taken place in Kenya (or if in Indonesia, then there, and the same for any other country).

    Such a document or application has not been found. NOR HAS THERE BEEN A RECORD OF OBAMA’S BEING CHECKED INTO THE USA BY THE US IMMIGRATION SERVICE.

    Thus there is the absence of either of these normal requirements for travelers, plus the Hawaii birth certificates, the confirmation by the officials, the statement by the teacher, the statement by the grandmother that the first that her family had heard of the birth was in a letter from Hawaii, etc.


  461. ksdb says (paraphrased): “It’s true, I found it on the inter-toobz!”

    Sorry, but I’ve known how to debunk every argument you’ve made since shortly after each lie was first told by a birther. Don’t worry, ellen has been more than ably outing you for the pathetic, incompetent birther* that you are. Name-calling is all you deserve. Show good faith and it will be returned, show bad faith and I’ll call you out for your willful ignorance, stupidity, dishonesty, and bigotry. Your credibility is already zero right now–I don’t feel the need to do anything more than remind you of that fact.

    *(non-birthers: sorry for the repetitive redundancy, but you need patience when trying to communicate with birthers…)


  462. Squeeky,

    The Vattelites may despise you, but they love you over at the Fogbow…


  463. Squeaky,
    Huh? I think Flash Gordon is calling!


  464. yesterday was a much more interesting day in this thread.

    I hope Nal will soon have new insights to share with us after he is done with the research.

    Anyway,
    This is what he left us with…

    “Some interesting quotes from the Ankeny decision:

    Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, …

    Key word: “guidance”

    To the extent
    that these authorities conflict with the United States Supreme Court‟s interpretation of what it means to be a natural born citizen, …

    Key word: “interpretation”

    Nowhere does the Court of Appeals for Indiana claim that they’re following a binding precedent. The court does not use the word “holding” to describe any of WKA’s citations.

    Just saying.”

    I must admit I have never heard this claim before…


  465. Slarti:

    That NOT showing good faith when arguing is what bothers me the most about the Vattle Birthers. I could be patient with people who were just un-informed. But it takes willful ignorance, at a minimum, to continue this two citizen parent foolishness. I mean, how hard is this:

    Question 1: When a court says there are doubts about an issue, and says it does NOT (Hint!) need to address those doubts in THIS particular case, it means:

    a) The court did NOT make a ruling on that issue.

    b)Yippee We Win!!! The Court Decided That Issue In Our Favor!!!

    c) It depends on the meaning of the word “NOT“

    d) Is this a “Trick Question”???

    This is from the test I give them.

    Squeeky Fromm
    Girl Reporter


  466. Squeeky,

    Whenever I wrote tests, my students always felt that they were way too hard. I saw a question I liked recently–it was something like:

    What are the odds that you will get this question correct by guessing?

    A) 25%
    B) 33%
    C) 25%
    D) 60%

    Get it?

    (Sorry, raff… :-()


  467. Slarti, you are avoiding making a mathematical equation for me, based off the Minor quote. Does it have you worried?


  468. Slarti:

    I think the answer is 25% because there are 4 possible answers. But it could be 50% which isn’t on there or it could be 33% depending on the meaning of ["this" question].

    The PJFoggy Obots like me??? I never would have dreamed that.

    Squeeky Fromm
    Girl Reporter


  469. Slarts,
    My head is already hurting!


  470. @Slartibartfast, expect better of yourself instead of resorting to lazy name-calling. I gave you very specific citations of law that showed Dr. Chiyome Fukino was not being completely truthful to the HI legislature. Namecalling doesn’t explain away her lack of candor.

    @ellen, you’ve ignored now for the THIRD time, that the state department has claimed that records prior to 1965 were destroyed. Obama’s absence of records does not disprove that he could have traveled from Kenya to Washington state after his birth. These records were destroyed. You should be concerned because the state deparment may be trying to hid the truth about Obama. The bottom line remains: There’s no legal nor physical evidence placing Obama in Hawaii until he was a toddler.

    @squeegy: You’re still confused about what doubts the Minor court was discussing. The only doubt they raised was over the citizenship of persons born in the country without reference to the citizenship of the parents. There were NO DOUBTS about the children born of citizen parents. This group of persons was exclusively characterized as natural-born citizens. You’re not showing any good faith until you recognize this fact. It’s in the decision in black and white. Read it. Learn it. Understand it.


  471. I would love to see more mathematical equation in quotes actually, they are fun. Not that it matters but at the very least, it exposes consistency, right?


  472. One question. Why is Obama using a Connecticut social security number out of a state that he never lived in that belonged to someone else??


  473. kdsb:

    The Case of Virginia Rabbit Versus Happersett (1875)

    The Court: At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all rabbits were mammals, and their children were mammals, too. These were mammals, or common sense mammals, as distinguished from critters like platypuses or weird animals. Some authorities go further and include as mammals, platypuses. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

    Vattle Birthers: See!!! This PROVES platypuses are NOT mammals!!!

    Rational People: Uh. . .No. Because the case was about a rabbit, they didn’t have to deal with platypuses at all.

    Really now, how hard is this to understand???

    Squeeky Fromm
    Girl Reporter


  474. To answer Slarti’s question: the answer is 33% since the odds are 1 in 3 of guessing correctly.


  475. Queefy has just proved she has not read Minor. FWI, girlfriend, there are non “Vattle birthers” that don’t like you either.


  476. Slarti’s question is designed to switch the subject. The same question has littered the internet for some time.


  477. @ Cynkading

    There is no such thing as a “Connecticutt social security number”. The Social Security Administration has a warning on their site that you should not make much of the geographic correlation of SS#’s. Something as simple as a mistakenly keypunched zip code would account for assigning a number other than what would be normally associated with an area. Dwight Eisenhower received a “California” number even though he was residing in Pennsylvania at the time it was assigned.


  478. Kontort:

    Uh, what do you mean??? In my example there is a class (mammals) to which some critters obviously belong. (the Rabbits). There are doubts about other critters who lay eggs and have bills – the platypuses.

    By stating the obvious, that rabbits are mammals — and with-holding judgment on the weird ones, the platypuses—all that is being done is stating the obvious while avoiding the questionable ones. At that point, platypuses can not be said to NOT be mammals, only that their status is debatable.

    23 years later, in the case of Wong Kim Platypus, any doubts are laid to rest.

    Said obviousness leads one to ask, have you said “Shibboleth” yet??? Or are you just trying to maintain an aura of neutrality while tooting the Vattle Birther tin whistle???

    (No wonder you don’t like me. Incisive analysis like I provide is devastating isn’t it???)

    Squeeky Fromm
    Girl Reporter

    23 years later


  479. From Minor:
    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. 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, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

    Frommme a minor:

    At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all rabbits were mammals, and their children were mammals, too. These were mammals, or common sense mammals, as distinguished from critters like platypuses or weird animals. Some authorities go further and include as mammals, platypuses. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

    In order as written. ( I did my best)

    Rabbits=children or parents
    Mammals=citizens
    Children=?
    Mammals=natives
    Common sense mammals=natural born citizens
    Platypuses=aliens
    Weird animals=foreigners
    Mammals=citizens
    Platypuses=children with no reference to citizenship of parents

    As near as I can tell, platypuses are not considered common sense mammals. Maybe your BFF highlighted Minor for you after all.


  480. [raff... close your eyes and go to your happy place.]

    Squeeky,

    It’s a trick question–if one answer is right then it would be 25%, but if A and C are correct the odds of guessing correctly would be 50%, and if one of three equally likely choices were correct it would be B. D is right out.

    [Okay, raff, you can open your eyes now.]

    The people at the Fogbow like anyone who engages in good faith-but your recent series of smackdowns certainly caught people’s eye…

    http://www.thefogbow.com/forum/viewtopic.php?f=25&t=3044&start=2100#p304715

    Your exploits were also noted on the threads for Mario and Leo (when they were having their lack of a clue ).

    mrjr101,

    No you wouldn’t. Breaking down the logic of a quote exposes meaning not consistency–that’s something you need to avoid at all costs. You can’t lie in the language of mathematics–that’s why lying with statistics is so effective…

    Komfort,

    I’m avoiding breaking down the logic of the Minor quote for you because you haven’t said “shibboleth”* (and proved you weren’t a birther). That’s my price–I don’t care if you pay it or not. American soldiers in the Pacific in WW II used “Lollapalooza”–if the first two syllables came back “rorra”, they opened fire. Be glad I’m just going to excoriate you if you can’t say it…

    * http://en.wikipedia.org/wiki/Shibboleth search on the term in this thread if you want to know what I mean by “shibboleth”…

    Fred,

    But you’re guessing randomly amongst four answers… ;-)

    cynkading,

    The SS# in question (which Orly Taitz should be disbarred for spreading over the internet in my opinion) was most likely (even the SSA says the state codes are unreliable) the result of the confusion of a “0″ and a “9″ in President Obama’s zip code by a SSA clerk. I would also note that it is a crime to check the number on e-verify (asserting you are President Obama’s employer), the person (Hollister) who originally got the number did so fraudulently (by registering on a (government) website as President Obama and getting the Selective Service form mailed to him, and the number almost certainly fails a check because President Obama has been assigned a new one (due to the old one being plastered around the internet by the most incompetent lawyer in the world–Orly Taitz [my opinion]).

    You’re just a pathetic, incompetent birther. What are you going to try next? Indonesian Adoption? Pakistani travel ban? There is no birther argument with any merit whatsoever, so why don’t you and the rest of your impotent birther friends just STFU?


  481. Yeah, it is pretty devastating. I will give you that.


  482. Slartibartfast: I assume this is supposed to be persuasive because the document standards for an island nation in 1904 are such strong precedent for documents in a US state in 1961…

    mirrose,

    Thank you for providing a wonderful example of how predictable and incompetent birthers are. You did a very good job!

    ————————————
    Well, since you didn’t comprehend the info re: the same “freedoms” towards acquiring Certificates extending to O’s time, I’m afraid you aren’t in any place to advise those providing you with helpful info to unconfuse your confused mind re: incompetency. Heh! So just flip your comment to reflect your own qualities of not being quite as up to snuff as you would like to convince.


  483. Squeeky,

    What I’m wondering is if he just can’t bring himself to say “shibboleth” or if he just doesn’t understand what I mean…


  484. Awwww Slartibartfast, you talk so purdy……

    brought this over from one of my favorite sites……
    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
    Citizen Wells site….

    yo | November 17, 2011 at 12:54 pm |

    A fly on the wall in the social security administration says that there are furious efforts to contrive documents showing obama’s ssn is authentic before the meeting in new hampshire. Yelling, screaming and threats are being leveled against anyone who will not co-operate. It is said that it doesn’t matter what the contrived evidence is or whether it looks authentic or not, because the network news contacts have assured the white house that anything will be accepted.

    Informed sources say that the white house will refer to anyone who doesn’t accept the dubious documents as authentic is a hate mongering racist and doesn’t deserve any media attention.

    -the ghost of Jack Anderson


  485. mirrose,

    How do you explain the unblemished record of epic FAIL that is the birther movement? How do you explain not knowing the difference between a nation and a state? How do you explain your endless repeating of long-debunked lies? I think that the fact that you are an unPatriotic birther bigot who probably denigrates the Constitution whilst wrapping itself in it is explanation enough…

    cynkading,

    Hey, at least you found a new lie…


  486. Squeeky,

    That there is an example of birther journalism: no link, no primary source, no credibility whatsoever…


  487. Slarti, yesterday you told me”If someone is interested enough in the discussion to join it, then you don’t get to tell them what they can or cannot talk about.”

    I assume you are not interested and that is why you are telling me what to talk about.


  488. Komfort,

    No, you asked me to do something and I told you that I would do it if you met a condition. So far, you have failed to do so. I’ve never told you what to talk about, by the way, I’ve just noted that what you do say seems to indicate that you are a birther… I’ve told you what you need to do to convince me otherwise–either do it or don’t, but quit whining, it’s pathetic.


  489. cyn,

    Sorry, it’s too late–you’ve already shown that you have no credibility (your cut-n-paste journalism was just one example, but there is plenty more to choose from…)


  490. Komfort:

    In your opinion, is Obama a natural born citizen and eligible for the presidency??? If no, why not. If yes, based on what. Just a short answer is fine with me, unless you are feeling wordy.

    Squeeky Fromm
    Girl Reporter


  491. Nice example on whining. Queef knows the code and handshake. It is up to you to help her mess of an analogy.


  492. Komfort,

    Search this thread for “shibboleth” and you will see what I mean (you would have known already if you could actually read and comprehend others comments…).


  493. Komfort is one of those folks who are often wrong, but never uncertain.


  494. I have no answer until the dicta is resolved. Honest.

    I thought a rational discussion would sway my opinion. It has been hit and miss today.

    I would like to know what Minor really said. I would like to know why Minor was used in WKA. And I would like to know the true rationale of both opinions.

    Nal is searching for the same thing, without being forced to join a side that will profit or perish from the conclusion.

    I believe the quote from Minor has only one way of being read. I asked the math guy for help, instead I need to buy a Nancy Drew decoder ring.

    Now, i am whining.

    I cannot force anyone back to the topic, but I wish I could.


  495. Slarts,
    My happy place has no math problems allowed!


  496. Otay Scribble comments often but is never certain.


  497. raff,

    That’s why I told you to go there!

    Komfort,

    If you weren’t a birther, your answer wouldn’t depend on Minor (ruling or dicta) and your request is somewhat disingenuous because my original point was about birthers misunderstanding the quote you posted because they don’t know the difference between “If A then B” and “if not A then not B”. Do you know? (the fact that you had trouble with Squeeky’s analogy argues that you don’t…)


  498. Nal started the conversation that I am participating in, not you.


  499. Komfort:

    You asked:

    I would like to know what Minor really said. I would like to know why Minor was used in WKA. And I would like to know the true rationale of both opinions.

    Answer: What Minor said is obvious. It is not something which requires legal analysis, just basic English skills. If you require legal analysis, that was done by the Ankeny court, thusly:

    ” 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, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

    Id. at 167-168. Thus, the Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.12″

    This mitigates in favor of the Plain English School of Thought.

    Your second curiosities:

    Minor was cited in WKA for the proposition that the court had to go to the common law for a definition of natural born citizenship, and in Ankeny for that ,and the fact that there were two sources of citizenship – birth and naturalization.

    The subject language was cited in Wong Kim Ark to prove that a statement by Justice Miller in The Saughterhouse Cases had been misinterpreted.

    You can read those two cases if you doubt me. Plus, all this has been copy and pasted above, more than once.

    Squeeky Fromm
    Girl Reporter


  500. Looks like Komfort is not only logic challenged, but spelling challenged as well.


  501. If not for me would you put Squeaky’s quote in A then B format for her sake. Do it in your head first.


  502. Dr. Slarti, there you go abusing birther trolls with syllogisms, trying to force logic into their heads. As Eric Hoffer observed, “An empty head is not really empty; it is stuffed with rubbish. Hence the difficulty of forcing anything into an empty head.”

    I guess we could offer mathematical proofs, but then we run the risk of doing permanent damage to rafflaw.


  503. That will win it, Otay.


  504. I guess that means Otay hides behind rafflaw’s skirt. Go ahead, show me the a to b format.


  505. K, you do not really want to go there. Doc Slarti is a mathematician and I am a scientist as well. We live for logical proofs. As I said, you have been living proof of what Eric Hoffer was talking about. I do not have time for people who keep their minds in a logic tight compartment.

    Now I am about done. I have to be in Court in the morning. G’day.


  506. In your own example you excluded “platypuses” from “common sense mammals”

    Are you sure you are reading Minor correctly?


  507. OS,

    It’s okay, this is just logic, not math–raff will be fine… ;-)

    Komfort,

    On the off chance that you are just hard of thinking and not willfully ignorant and dishonest as well, here you go:

    A=child born on the soil

    B=child has citizen parents

    C=child is a natural born citizen

    the first part says “if (A and B) then C”

    ” 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, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

    ” “if A then C” has been asserted. “if A then C” has not been proven, but “if (A and B) then C” has been proven. It is not necessary to prove “if A then C”.

    Now you have a choice: say “shibboleth” or tacitly admit that you are a birther.


  508. OS,

    Too late.


  509. You do not want to go there, otherwise you would have already.


  510. Komfort:

    I did not EXCLUDE Platypi from the class of mammals. I simply said there were doubts. Some authorities included platypuses as mammals. Some didn’t.

    Just like the Minor Court, the Virginia Rabbit Court could punt with impunity, because Virginia was a RABBIT.

    This isn’t hard.

    Squeeky Fromm
    Girl Reporter


  511. Komfort,

    Oops! I’m going to stop playing with you now–just remember that you were way out of your league and everyone here knows it (except the birthers–can you say “shibboleth” yet?). Re your comment about Squeeky’s analogy: I guess we can add “analogy” to the list of things you don’t understand…


  512. Your quote does not have the term “natural born citizen”. Your definition of C is not in play.

    Did you mean to make C = “citizen” ?


  513. The last sentence:

    ‘It is not necessary to prove “if A then C”’

    should be:

    ‘It is not necessary to prove or disprove “if A then C”.’

    Komfort,

    I’m not going to discuss how Godel’s theorem affects the reasoning here–figure it out on your own…


  514. Komfort,

    In context, it is the only thing in play. Birther fool.


  515. That is right Squeaky. They are a class of mammals. Your example failed to make them “common sense mammals”

    Thank you for being more civil. I can work with a patronizing tone, I just don’t like being called something I am not.


  516. The math guy just blew it in front of the home crowd. Swing and a miss. You made up a definition. Be glad I am not grading you.


  517. OS,

    It’s funny how easy it is to trap birthers–you just insult them without providing any support for your arguments for a bit and let them get off and running and then… have you seen any of the Mythbusters episodes with a rocket sled?


  518. I got it. Komfort had no idea what you were talking about when you mentioned Godel. Let alone the natural progression into Tarski’s work.

    Myself, I prefer simple stuff. Like the guy is President, will remain President, and is likely to be re-elected President. Did I mention that he is black?

    In the meantime, birthers heads will continue to explode.


  519. Komfort,

    I don’t know what game you’re watching, but when the crowd cheers, it’s good for the home team… (some people need practical advice).


  520. Yes I saw several shows involving the application of Newton’s Third Law.

    My favorite was the old car with JATO rockets on the roof to check out the story of the 300 MPH car.


  521. OS,

    That’s a great one–with the birther sized FAIL at the end. It’s a good thing for the birthers that “failure is always an option” (Adam’s motto) It is sad that failure is their only option, though…


  522. They cheer for a fraud. You know you erred. They probably know it too.

    Later gang. I will check back for any updates from Nal.

    “Gee teach you took my made up out of whole cloth definition out of context”, would fail to persuade me to change your score.

    Fail. You should be ashamed.


  523. There are a couple where they completely annihilated a car with a steel wall mounted on a rocket sled and split a car in two with a “snow plow” mounted on a rocket sled–I think it was Tory that said, “any day with the words “rocket sled” in it is a good one” (unless you’re the car…)


  524. Ahh, make a straw man, claim victory, and quit the field–classic birther tactics! Bravo!


  525. Komfort:

    You said: That is right Squeaky. They are a class of mammals. Your example failed to make them “common sense mammals”

    You are confusing classes. Common sense mammals and weird mammals are both non-aquatic mammals. They also belong to a larger class, simply known as “mammals” which includes the naturalized “Aquatic mammals.”

    Squeeky Fromm
    Girl Reporter


  526. Right again Squeeky. That would translate to ” citizens children born within the jurisdiction without reference to the citizenship of their parents ” AND “natural born citizens” BOTH belong to a larger class called “citizens”.

    The larger class, unless you make up definitions, is citizens, not natural born citizens.

    Your analysis confirms that.


  527. Gee, a casual drop-in to this (birther) thread I end up going to Wikipedia to see if there’s any new news on the classification of the Platypus; geez, I love this blawg!


  528. Lottakatz:

    If you think this is “elementary”, you oughta see the “Fun With Dick and Jane And A Vattel Birther” Internet Article.

    http://birtherthinktank.wordpress.com/2011/10/18/fun-with-dick-and-jane-and-a-vattel-birther/

    You have to be have to think on the level of the average Vattel Birther.

    goo. goo. blurgle.

    Squeeky Fromm
    Girl Reporter


  529. KSDB said: “ellen, you’ve ignored now for the THIRD time, that the state department has claimed that records prior to 1965 were destroyed. Obama’s absence of records does not disprove that he could have traveled from Kenya to Washington state after his birth. These records were destroyed. You should be concerned because the state deparment may be trying to hid the truth about Obama. The bottom line remains: There’s no legal nor physical evidence placing Obama in Hawaii until he was a toddler. ‘

    Answer: The US State Department has said that SOME records before 1965 were destroyed. It did not say that all of them were. Were you of the impression that it had said that–that all records were destroyed–that no documents exist showing who was granted passports or visas? If so, you are delusional.

    There ARE records, and if Obama received a US passport, or was entered on his mother’s passport or received a US visa, they could have been found.

    Moreover, we are not just talking about the US State Department. There is also the US Immigration Service. They also have records. And, if Obama was recorded as having entered the USA in 1961–which he would have had to have been if he were born overseas–that would be in the records as well, and would have been found.

    There is no evidence that Obama was outside of Hawaii until he was a toddler, or even after that.

    The evidence that he was born in Hawaii is the official birth certificate of Hawaii, which is sufficient legal evidence to prove that anyone was born in the state that grants it. The State of Hawaii has never said that it did not not issue a birth certificate for Obama in 1961, and it sent a notice of Obama’s birth to the newspapers in 1961. In addition to the birth certificate, there is the evidence of the teacher who wrote home and the grandmother who said that the first she had heard of Obama was in a letter from Hawaii.

    As for Obama “could have traveled from Kenya to Washington State”–not without a passport or a visa he couldn’t.

    The State Department, you claim, “may be trying to hide the truth.” I take it that you think that they are part of the plot, along with the three Republican officials in Hawaii, the Democrats in Hawaii, the Kenyan government, the Bush Administration, and the Main Stream Media. They are all part of a massive plot to hide the fact that Obama’s mother traveled to Kenya at enormous expense (and they were not rich) and gave birth in that foreign land. Sure she did. Sure they are. And there are monsters under your bed too.


  530. LK

    i was at wiki refreshing on platypi too. it’s funny that there is no set plural for the animal.


  531. The platypus is living proof that the FSM has a sense of humor.


  532. DICTA?

    “The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen…”

    “But, in our opinion, it did not need this amendment to give them that position.”

    If the court was asked whether the 14th afforded women like Virginia Minor certain political rights and the answer specifically lay elsewhere in the “opinion’ of the court, how is this dicta? I’m not lettered in the law, but it seems apparent A2 was integral in the decision.


  533. I got stuck at “disambiguation” of Platypus … I dropped in and am now dropping out … none the wiser


  534. I would never disambiguate a platypus.

    That’s almost as cruel as vivisection or forcing them to watch “Jersey Shore” or read an entire thread of birther nonsense.


  535. Lottaplatypi,

    Hi! I proposed a shibboleth for birthers upthread, too. I tried it out on Komfort and he couldn’t say it:

    “I believe (or know) President Obama is a natural born citizen and eligible for the office of POTUS.”

    OS,

    Yeah, that’s the one–Komfort was just sitting there… enjoying a sunny afternoon… and then the second stage kicked in. I love the slow-motion shots on this one.

    pete,

    What is the word for a group of animals who’s singular form is “platypus”? I think the word for a group of birthers should be a “FAIL” as in: “did you see the FAIL of birthers at the latest rally? They barely got a deca-Usurpathon*–how sad.

    * The “Usurpathon” is the standard measure of turnout in birther events–it is based on the turnout at drk(H)ate’s Usurpathon on the Mall. One Usurpathon is equal to 3 birthers (5 if you include the two obots making fun of them).

    Komfort,

    That’s right, you play with Squeeky–she’s out of your league, too, but at least she’s nicer than I am…

    Squeeky,

    Sorry, I can’t do that–it makes my brain hurt.

    ‘Nite all!


  536. Slarts,
    I am in my happy place now, so please, no more math!


  537. gene

    of course not, platypuses are venomous.

    thus proving evolution


  538. raff,

    No worries, I’m done. Enjoy your happy place.

    Gene,

    Just be careful what you do disambiguate…

    pete,

    Oh no, I don’t have time to deal with the cintelligent designists after all the birther trolls…


  539. DICTA?

    “To determine, then, who were citizens of the United States before the adoption of the amendment it is necessary to ascertain what persons originally associated themselves together to form the nation, and what were afterwards admitted to membership.”

    The court found it “necessary” to define who were citizens prior to the 14th and did so with A2. Some argue that the use of the presidential citizenship eligibility requirement was used “in passing” rather than the court’s self imposed necessity. Read the case is my answer.


  540. Pete: “….no set plural for the animal.”

    You know you’re on shaky ground classification wise when no firm plural is attached. :-)

    ———————–

    Gene, of course you wouldn’t [disambiguate a Platypus], you’re not that sort of guy, but if you were, please upload the video. It might help me discern the meaning of “disambiguate”. Pete’s right BTW about the venom. As well, the Tasmanian Platypus is being plagued with a serious fungal disease for which there is no known cure so wear protection; a full bio-hazard suit would be appropriate… :-)


  541. Of course he is done. He is a liar and a cheat. He posted his own evidence to attest to that. A quote that does not mention a term that he claims it mentions.

    “Natural born citizen” was not used in the quote you provided. Yet you pretend it was. If you used the entirety of the quote then your argument may not have been so overtly false.


  542. Slarti: “The “Usurpathon” is the standard measure of turnout in birther events–it is based on the turnout at drk(H)ate’s Usurpathon on the Mall. One Usurpathon is equal to 3 birthers (5 if you include the two obots making fun of them).”

    LOL.

    I would have taken the debate more seriously if it hadn’t been brought regarding the country’s first black President. McCain’s Panama birth never seemed to raise the question, even as a technical exercise.


  543. They had a resolution over McCain. How did you miss that?


  544. lotta,

    Yeah, but some of their best friends are black–they just don’t come to any of the rallies…

    My opinion on McCain (and some of the birthers attack him, Rubio, and Jindal as well) is that I’m not sure if he is technically a natural born citizen, but no court would rule against him and no opponent would make an issue of it. I don’t think that the Founders would have intended to exclude someone born in his circumstances either.

    Komfort,

    As I said, “citizen”, in the larger context, referred to the class of citizens that Virginia Minor belonged to–i.e. natural born citizens. The problem is that you don’t understand, not that I’m a “liar and a cheat”. I’m sorry that you are a mentally inferior birther fool trying to score abstruse debating points in your Quixotic quest to incite a coup against the lawful POTUS, but at some point you put getting the answer you wanted ahead of getting the truth and then you were sliding down a long and slippery slope…


  545. Speaking of dicta and platypi, is it of any consequence that dicta is usually the statement of a single judge. (as in “one”, not as in “unmarried” or “free”)??? See, for example, from the Free Dictionary:

    Opinions of a judge that do not embody the resolution or determination of the specific case before the court. Expressions in a court’s opinion that go beyond the facts before the court and therefore are individual views of the author of the opinion and not binding in subsequent cases as legal precedent. The plural of dictum.

    Therefore, I submit, that when more than one judge embraces the language, as in a SCOTUS decision, it can not be dicta.

    Squeeky Fromm
    Girl Reporter


  546. Slarti,

    I thought you were done :) … left you a post over there


  547. The Gardening book does not, in words, say what shall be Plums. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Gardening book were familiar, it was never doubted that Fruit from trees, in which the shoots have a terminal bud and solitary side buds (not clustered), the flowers in groups of one to five together on short stems, and the fruit having a groove running down one side and a smooth stone (or pit), were Pit Bearing. These were Plums, as distinguished from Apples and Oranges.

    Some authorities go further and include as Pit Bearing the Fruits of trees with no reference to the genus of the tree. .As to this class there have been doubts, but never as to the first.

    Watch Slarti pull a banana out of his arse and turn it into a plum.

    Even Mythbusters will cheer when you pull that one off.


  548. …it was never doubted that trees…


  549. Nal, and others:

    I am way too lazy to read thru this entire thread again, but I recall you wishing you had certain reference materials. This may help:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=619124

    Defining Dicta

    Maxwell L. Stearns

    University of Maryland Francis King Carey School of Law

    Michael Abramowicz

    George Washington University Law School

    Stanford Law Review, Vol. 56, 2005

    It is free, and looks pretty good. I am reading it.

    Squeeky Fromm
    Girl Reporter


  550. Komfort:

    At least you are starting to think about classifications and how to re-phrase Minor. I am awaiting your imminent voluntary exclamation of “SHIBBOLETH!!!”

    Squeeky Fromm
    Girl Reporter


  551. DICTA?

    Justice Fuller stated in EX PARTE LOCKWOOD (1894), “Minor v Happersett, 21 Wall. 162, this court held 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;”

    Justice Gray stated in US v WKA (1898); “Chief Justice Waite said: ‘Allegiance and protection are, in this connection (that is, in relation to citizenship) reciprocal obligations. The one is a compensation for the other; allegiance for protection, and protection for allegiance.’ ‘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. 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, but never as to the first. 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.’ Minor v. Happersett (1874) 21 Wall. 162, 166-168.”

    Some argue that MvH is solely a case involving the matter of suffrage contrary to citations used by later courts that are entirely reflective of the nature of citizenship and associated political rights, specifically as to whether derivative of the 14th or A2.


  552. I am awaiting Slarti to show some humility and admit his deception.

    Squeeky please note that the most that a tree with doubts can be is pit bearing, assuming the doubts are resolved. It cannot be a Plum.

    Unless you cheat, it works out this way every time. Going to bed now. In the morning I will create another one that relates to mathematicians and fraud.


  553. Komfort, The questions about McCain were a response to the questions raised about Obama. There are still questions about McCain’s citizenship but those on the right sure aren’t pushing them or demanding a definitive answer to the question. Ms. Taitz sure doesn’t seem to care. Hmmmm, it’s all about the black guy, I’m gonna’ stick with that.


  554. lotta,
    I agree with your response to Komfort. Can you imagine how the Republicans heads would have exploded if the Dems had pushed this same BS about McCain?!


  555. Clinton supporters raised the first questions about Obama during the primaries. Then McCain was the rage around Feb of 2008. The Obama garbage started again around June of 2008. The most prominent case was brought by a democrat, yet I do not remember him being labeled a racist.


  556. Thanks for sharing Squeeky, I thought I had to smash my piggy to see what Nal is reading.


  557. Wow Komfy, is that the best you could do? Squeeky’s metaphor is what we in the reality-based world like to call “apt”–meaning that it is a true map of some aspect of the territory. Yours, on the other hand, was to an accurate map what Ballantine is to slcraignbc on the subject of the law–finely crafted words vs. word salad. You do understand the metaphor of the map and the territory, right?

    I look forward to the straw men you plan on making tomorrow. I’m sure that they will feed my confirmation bias that birthers are losers… yum!

    Squeeky,

    I think he’s just dimwitted–he doesn’t know what we’re talking about, so he’s latched on to what he thinks is a valid technical point (which unfortunately just further demonstrates his lack of understanding) and he’s desperately hoping that somehow it will translate into victory in people’s minds. I can’t decide if it’s an example of cargo cult thinking or Underpants Gnome reasoning:

    1. Claim victory

    2. ???????

    3. Birthers uber alles

    What do you think?

    Re shibboleth: I’m really pleased with myself for remembering that term–it really is a perfect shibboleth, no birther can say it. It’s better than asking potential Jerries about baseball or suspected Japs to say “Lollapalooza”. To use another analogy, Komfy has no idea who Babe Ruth is (let alone Ty Cobb) and can’t pronounce “L” instead of “R” to save his life. He probably doesn’t even understand what we’re talking about–erudite conversation is an impenetrable code to the thinking impaired…

    Tee hee! ;-)

    Hi Blouise!

    Komfy,

    You’re playing the PUMA card? Really? The first birther (Phil Berg, for those who don’t know) is a 9/11 truther and completely rejects the “Vattel” position (Kenya or bust!). His only current birther litigation is in the civil war with Orly (who is still, at last I checked, not disbarred. Taitz (needed to get her last name in for the search engines… ;-)). Dude, you just keep making things worse–I suggest you get out while you’re only way behind… In other words: RUN AWAY!

    Brave, Brave Cur Komfy

    Bravely bold Cur Komfy
    Rode forth from Birfestan.
    He was not afraid to lie,
    Oh brave Cur Komfy.
    He was not at all afraid
    To be shamed in nasty ways.
    Brave, brave, brave, brave Cur Komfy.

    He was not in the least bit scared
    To be mashed into a pulp.
    Or to have his eyes gouged out,
    And his elbows broken.
    To have his kneecaps split
    And his body burned away,
    And his limbs all hacked and mangled
    Brave Cur Komfy

    His head smashed in
    And his heart cut out
    And his liver removed
    And his bowls unplugged
    And his nostrils raped
    And his bottom burnt off
    And his pen–

    “That’s… that’s enough music for now lads,
    *** there’s dirty work afoot*** ???.”

    Brave Cur Komfy ran away.
    (“No!”)
    Bravely ran away away.
    (“I didn’t!”)
    When reality reared it’s ugly head,
    He bravely turned his tail and fled.
    (“no!”)
    Yes, brave Cur Komfy turned about
    (“I didn’t!”)
    And gallantly he chickened out.
    ****Bravely**** taking (“I never did!”) to his feet,
    He beat a very brave retreat.
    (“all lies!”)
    Bravest of the braaaave, Cur Komfy!
    (“I never!”)


  558. That explains why you can’t solve jack doo doo, Snoti. You do not read before you post.

    I guess you left the banana in place and pulled words out that I did not say. You are good at making stuff up.


  559. Komfort, You may well be right about where it started and if that’s the case then I would lump the perps in with the subsequent people that embraced the issue and keep it going. I know the right jumped on it in early summer and it’s been a circus ever since with no let-up in sight. After 3+ years and losses on every front there’s more going on than a clean question of law.


  560. Is Komfy haz a sadz I not read his precious post? I read it–you’re flailing pretty badly, aren’t you? Your problem is that you lack an isomorphism between your construct and reality, thus your logical framework is ill-formed and no truth is conveyed–in other words, your map bears no relation to the territory. If you’d payed attention to your Hofsteader, then you wouldn’t have had this problem. Just sayin’…


  561. A=child born on the soil

    B=child has citizen parents

    C=child is a natural born citizen

    the first part says “if (A and B) then C”

    ” 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, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

    ” “if A then C” has been asserted. “if A then C” has not been proven, but “if (A and B) then C” has been proven. It is not necessary to prove “if A then C”.

    Was this a joke? I was expecting an honest equation. I’m very disappointed.


  562. “A holding consists of those propositions along the chosen decisional path
    or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta.”- Defining Dicta, by Stearns and Abramowicz

    Is MvH dicta per the three criteria for a holding?


  563. Lotta, here is Clinton supporter Stephanie Tubbs in Feb of 2008 eluding to Obama’s “country”, I thought it was BS at the time, I still think it is BS today.

    Sadly she passed away in August of 2008, so there will be no follow up questions.

    For the typical reasons I do not think she would be labled a racist.

    Snoti, you are a lost cause.


  564. mrjr101,

    You’re disappointed because you are a foolish birther and you don’t understand formal logic. I bet I’d have a better chance to teach a horse calculus than to get a birther to understand…


  565. Komfy,

    All birthers are bigots (the are prejudiced against President Obama).

    All racists are bigots.

    All birthers are NOT racists.

    Do you understand?


  566. right formal logic. Leaving out the “Citizen” variable out of the equation is formal logic to you. Good try mathematician.


  567. Lotta, if you have the time, I think you should search the events of the last three years. You will find the “birther” questions have almost always come from the left. Sure, dummies on the right answer the questions, but they never bring the topic up.

    That same phenomenon has transpired here. I have not brought up any of the birther nonsense, but the attacks continue. I have tried very hard to stick to the topic.

    Team WKA claims the holding is much greater than it would appear. Yet when asked what the limits are (5 pages 20 pages) the answers are vague and delivered with insults. Even the author of this thread is still searching.

    I have had a reversal of how I read the quote from Minor. It is key in my answer to squeeky’s honest question of me. I see the wording differently than I used too.

    This looked like a thread that was not going to go birther batty, but it did. Too bad it ended with such a top dog around here cheating. All good teams have their Barry Bonds.


  568. Portney:

    That is a long article. Please give page numbers where you find stuff.

    Thank you!

    Squeeky Fromm
    Girl Reporter


  569. No you wouldn’t. Breaking down the logic of a quote exposes meaning not consistency–that’s something you need to avoid at all costs. You can’t lie in the language of mathematics–that’s why lying with statistics is so effective…

    logic exposes order, patterns, hence consistency. Meaning is what you make of it. You can’t lie in math but you can definitely mess up the math with your logic.


  570. All anchor babies are citizens

    All natural born citizens are citizens

    All anchor babies are not natural born citizens

    I almost Googled Godel, and here you are coming around.


  571. Squeeky,

    After Komfy’s last comment, I’m going to have to go with “cargo cult”.

    mrjr101,

    You probably don’t realize it, but to someone with my training, it’s obvious from your last couple of comments that you don’t even have a clue what the terms you are using mean. You’re like a toothless little yapping dog–hardly loud enough to be annoying, let alone intimidating…

    Komfy,

    You’re really not the brightest bulb in the bunch, are you?

    Native born children of (generally illegal) aliens are called anchor babies

    All native born children* are natural born citizens (it is the standard of citizenship used in the US according to President Madison)

    illegal aliens are neither diplomats nor foreign occupiers

    Conclusion: All anchor babies are natural born citizens

    *except children of diplomats and foreign occupiers


  572. Barry Bonds, Everyone knows he cheated but he doesnt admit it, although, didn’t he retired?


  573. Your work is no longer trusted.


  574. Why so irritated Slarti? That really sounds like you are afraid of being intimidated.


  575. Komfy,

    By whom? Do you think I really care about what you or your yappy dog or your other incompetent birther friends think? I’m sure everyone I care about here still trusts me just fine.


  576. Sorry about not citing the page number…does make it hard to follow, now included with quote this time.

    “A holding consists of those propositions along the chosen decisional path
    or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta.”- Defining Dicta, page 9, by Stearns and Abramowic


  577. Awwww, nothing more sad than a mathfauxtician pouting. Well ding dang it, you have friends. Do you want me to keep your deception a secret from them? It will be tough, unless you can scrub your erroneous post.


  578. mrjr101,

    Irritated? Nah–I’m amused by you and your fellow birthers. Plus your squawking is the perfect wedge issue–it splits the independents from any birther-friendly or birther-curious candidate…


  579. “[A] presumptive definition of holding (and thus by negative implication, of dicta), counting all “supportive propositions” as part of the holding. A supportive proposition is one that is necessary or sufficient for the case disposition or for the disposition of another proposition that itself expresses a holding. Thus, if proposition A is sufficient for proposition B, and proposition B is necessary for the case disposition, then proposition A would count presumptively as a holding.” -Defining Dicta, page 15, by Stearns and Abramowicz


  580. “Crediting necessary propositions that a court has actually decided as holdings is obviously important. A legal system that did not count decided propositions that are necessary to the disposition as holdings is effectively a legal system without holdings. Thus, we can at least tentatively conclude that decided propositions that are necessary to the disposition of a case are holdings, even if those propositions are not sufficient for the result.” -Defining Dicta, page 17, by Stearns and Abramowicz


  581. “With alternative justifications, it is unmistakable that the opinion author did more than was necessary. Thus, there may be a stronger case for excluding alternative justifications from the status of holding than there would be for excluding statements representing alternative possible justifications.68 If we were to accept the simplistic “necessary” definition of holding, alternative justifications would not be holdings. Eventually, however, we will conclude that neither problem by itself should transform a statement from holding into dicta.” -Defining Dicta, page 21, by Stearns and Abramowicz


  582. In reading “Defining Dicta”, it is impossible not to admit that lawyers like ballantine would need a hand puppet and significant patience to explain it to me. Though the individual words are plainly english the legal context is a tough slog. I hope the future conversations on this blog steer back toward Nal’s original post and whether the juicy portions of MvH constitute dicta. Perhaps we can ignore the “birther” aspect and discover if “Defining Dicta” has a workable set of criteria.


  583. REPOST OF SQUEEKY’S SUGGESTED REFERENCE (THANKS, GIRL REPORTER):

    Nal, and others:

    I am way too lazy to read thru this entire thread again, but I recall you wishing you had certain reference materials. This may help:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=619124

    Defining Dicta

    Maxwell L. Stearns

    University of Maryland Francis King Carey School of Law

    Michael Abramowicz

    George Washington University Law School

    Stanford Law Review, Vol. 56, 2005

    It is free, and looks pretty good. I am reading it.

    Squeeky Fromm
    Girl Reporter


  584. “All anchor babies are citizens

    All natural born citizens are citizens

    All anchor babies are not natural born citizens

    I almost Googled Godel, and here you are coming around.”

    The Court has obviously never addressed anchor babies. In Phyler v. Doe there is dicta extended Wong Kim Ark’s definition of subject to the jurisdiction to resident illegal aliens. Textually, there is no way to distinguish illegal from legal aliens. Since Wong Kim Ark say natural born citizen is to be defined by the same common law definition, it is the current assumption that anchor babies are included. I know, I know, there are people here who skip over the part of the decision about NBC being defined by the common law. However, no real legal authority has ever said a citizen under the 14th is not natural born.

    It is amazing that people here insists on re-writing case law and insisting they are write. No real lawyers would do any such thing. Take Gray’s quote of Minor. Gray unambiguously states that he is quoting Minor to show neither Miller nor the court were committed to excluded children of foreign subjects. To claim the citation is for any other purpose is lying. To say Gray cited it because he agreed with its definition of “natural born” is lying. If Gray wanted to cite it for that purpose, he would have said so. A laywer claiming otherwise would be sanctioned. The truth is that no one involved with Wong Kim Ark, not the government, the majority, nor dissnet said Minor defined “natural born” because it doesn’t. They all talked about who was “natural born” but no one thought Minor was relevant. Again, it is simple a lie to say Minor said children of aliens are not natural born citizens. Minor didn’t commit to their status at all and didn’t said what type of citizens they might be. Claiming that it was talking about another type of citizenship than “natual born” is not ethical. One simply cannot claim a court says things it doesn’t actually say. Speculation is not legal interpretation. Such is why the birther lawyers have their cases call frivolous by the courts and get threatened with sanctions.


  585. For those who have trouble with WKA, please point out where Chief Justice Fuller’s summary of the majority is wrong. A summary that says exactly what I say the court says and a summary Justice Gray would have read and commented on before publication. Honestly, perhaps we both are wrong. Please point out what Fuller says isn’t in the majority opinion that he is paraphrasing:

    “The argument is, that, although the Constitution prior to that amendment nowhere attempted to define the words “citizens of the United States” and “natural-born citizen” as used therein, yet that it must be interpreted in the light of the English common law rule which made the place of birth the criterion of nationality; that that rule “was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established;” and “that, before the enactment of the Civil Rights Act of 1866 and the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign Government, were native-born citizens of the United States.” Thus, the Fourteenth Amendment is held to be merely declaratory except that it brings all persons, irrespective of color, within the scope of the alleged rule, and puts that rule beyond he control of the legislative power…. And it is this rule, pure and simple, which it is asserted determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words “citizen of the United States” and “natural-born citizen” used in the Constitution as originally framed and adopted.”


  586. @ballantine, you’re interpetation of Gray’s citation of Minor is completely delusional. Why on earth would someone quote a decision that wasn’t about foreign subjects to show that the Court was NOT committed to excluding foreign subjects from the citizen clause of the 14th amendment?? This is pure stupidity or intentional comedy gold. Second, your premise fails because Minor clearly summarizes the citizenship path for foreigners as following naturalization. Third, your premise fails because Gray acknowledged a paragraph AFTER citing Minor’s definition of NBC that V. Minor was found to be a citizen by BOTH jus soli and jus sanguinis critieria. The Minor decision doesn’t specifically say that Minor was born to citizen parents, but Gray DOES say this in WKA. Why would he do this when he posits afterward that citizenship by birth does not require citizen parents?? The answer is because he was respecting NBC as a separate class of citizenship and upholding the finding in Minor. Read it. Learn it. Comprehend it.


  587. Ksdb, you are simply dishonest. In plain english Gray says he is citing Minor to show that neither miller nor the court were committed to the dicta that children of foreign subjects were excluded from the 14th. To say minor was cited for anyother reason is lying. And the Minor quote contains the statement that there was disagreement as to whether children of aliens were citizens, a disagreement the court would not address. Hence, the court was not comitted to a view on the children of aliens, the sole purpose of the citation. Spin, twist, re-write all you want, you are just proving you are dishonest or can’t read


  588. ballantine1, November 17, 2011 at 2:21 pm

    Sorry slcraignbc we don’t interpret the Constitution by who you think would be the most loyal. I know you caanot find any statement from a framer to suppport your position, but speculation has no place in Constitutional interpretation. You need to present facts. The facts are that the most important framers wanted no restrictions on office holde legalars and place of birth was all they discussed. The facts are that all early legal authority adopted the common law rule.

    Notwithstanding ALL arguments, dicta and rhetoric in favor of Jus Soli determination of U.S. Citizenship irrespective of the citizenship of the parents prior to the 14th I STILL see NO express LAW promulgated by the Congress that lends ANY credence to that position.

    When, in fact the ACTUAL LAWS promulgated state quite clearly, that immigrant aliens must register at local district Courts and follow established procedures for a number of years and, upon completion and naturalization, their wives and children will share in the achieved Citizenship.

    From that point on the benefiting Citizen possess the Birthright prerogative and any children then born are Citizens at birth and if born within the Jurisdiction are born in the fullness of the requisite circumstances of being BORN as an American natural born Citizen, (the period between 1790 and 1795 that child, even if born abroad, would be CONSIDERED a natural born Citizen).

    The 1790 Act to make an uniform Rule on naturalization clearly acknowledges and establishes jus sanguinis as the Ruling Principle of Citizenship of U.S. Citizens and ALL Laws promulgated since reinforce that Principle. The jus soli Collective naturalization provision was intended 1st to benefit those persons who had previously been denied Citizenship by the Constitution, but once made Citizens then they too possess the Birthright via jus sanguinis.

    Read the U.S.LAWS, they are clear and unambiguous in spite of the feudal Lord leanings of much of this crowd.

    To accept jus soli as ruling under the English Statutory Law on subject-hood is to accept FORCED expatriation of the prodigy of ANY foreign national that happens to be visiting U.S. soil. and, too, is to accept that the position of the British Crown regarding the status of U.S. seamen remaining as British subjects in 1811.

    Jus soli, of the English brand, was integral to their Empire building of distant CONQOURED lands just as jus sanguinis is integral to the U.S. brand of Citizenship, by expressed consent beginning with the Founders and those subsequently naturalized and “tacit” consent of their prodigy, leaving it to time to determine if those prodigy cling to the inalienable Rights guaranteed by our Republican form of Guv’mnt.


  589. slcraignbc,

    So you are just going keep saying you are right over and over without citing any authority to back you up. I pointed out that the Supreme Court stated that our naturalization statutes didn’t change the fact that we followed jus soli birthright citizenship. That the Supreme Court and Congress said people born on US cannot be naturalized. That the Supreme Court said both before and after 1866, native born children of aliens were native born citizens. That you cannot cite a single authority that says native born children of aliens were ever naturalized or needed derivative citizenship. That Congressional debates made clear they were following English law with respect to naturalization. That no one ever said that native born people get their citizenship from any statute. To everyone else in the world, derivative citizenship was only for foreign born children as the native born were already citizens. In the words of the authority of the Civil Rights Act citizenship clause:

    “And, as is suggested by a Senator-behind me, even the infant child of a foreigner born in this land is a citizen of the United States long before his father.” Senator Trumbull (reply to President Johnsons’s Veto), William Horatio Barnes, History of the Thirty-ninth Congress of the United States, pg. 254 (1868).

    So, I guess you are going to keep saying you are right and everyone else is wrong.

    Did you know that for several decades following 1802, there was no naturalization statute that conferred jus anguinis citizenship on children of citizens born oversees? Numerous scholars pointed out that since we followed jus soli and the common law rule, such children of citizens were born aliens. Congress eventually listened expressly acknowledging that we followed the common law rule and amendment our naturalization laws to provide for such citizenship.


  590. Per “Defining Dicta”;

    “A holding consists of those propositions along the chosen decisional path
    or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta.”

    And;

    “[A] presumptive definition of holding (and thus by negative implication, of dicta), counting all “supportive propositions” as part of the holding. A supportive proposition is one that is necessary or sufficient for the case disposition or for the disposition of another proposition that itself expresses a holding. Thus, if proposition A is sufficient for proposition B, and proposition B is necessary for the case disposition, then proposition A would count presumptively as a holding.”

    Did the MvH court put the A2 as a necessary proposition for dismissing the political voting rights demanded by Virginia Minor under the 14th?

    “The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen…”

    “But, in our opinion, it did not need this amendment to give them that position.”

    With that, I think the opinion of the court of how she enjoys her citizenship and expectation of inherent rights is elevated above mere dicta.


  591. @ballantine, the honesty problem is yours alone. You claim Gray was trying to show the court was not committed to excluding foreign subjects by citing a case that wasn’t about foreign subjects. This means he would be trying to rely on a non sequitur because Minor didn’t involve a foreign subject. And you’re inserting a “not” where none was used. Gray didn’t say the court was not committed, he said the court WAS committed and that this was manifest (which means clear) from a UNANIMOUS decision. For the court to NOT be committed, it would have to result from a split decision. Minor was NOT split. It was unanimous in excluding children born of citizen parents from the citizen clause of the 14th amendment. Context is key. Read it. Learn it. Understand it.


  592. “The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen…”

    “But, in our opinion, it did not need this amendment to give them that position.”

    With that, I think the opinion of the court of how she enjoys her citizenship and expectation of inherent rights is elevated above mere dicta.”

    But the discussion of citizenship does not lead to the judgement. The answer to the question presented was citizenship was irrelevant to the right to vote. Why would it need to determine citizenship if it was irrelevant? Why did the Missouri Supreme Court not even mention Minor’s citizenship when addressing the same question? It was not necessary and it was not raised.

    But let’s step back, let’s assume that Minor can be read as holding that Minor was a “natural born citizen.” There is no argument at all that anything the court said about children of aliens would clearly be dicta as there is no argument that the status of such persons was relevant to the decision as Waite clearly stated. Thus, at most, Minor can be cited for the proposition native born children of citizens are natural born. It cannot be cited for the proposition that children of aliens are not natural born since it doesn’t say that, and even if it did, it clearly would be dicta. Such is the biggest problem with Donofrio’s claim. He wants to cite the case for the proposition that children of aliens are excluded and there is no way Minor can be cited as precedent for that.


  593. “@ballantine, the honesty problem is yours alone. You claim Gray was trying to show the court was not committed to excluding foreign subjects by citing a case that wasn’t about foreign subjects.”

    Because that is what Gray said in unambiguos terms. The case was not about children of foreign subjects but the quote contained a clear statement that there was disagreement about children of aliens, i.e., foreign subjects, that the court would not address and hence was not committed to. This really isn’t that hard. It is plain English that you refuse to accept. Dishonest.

    And you’re inserting a “not” where none was used. Gray didn’t say the court was not committed, he said the court WAS committed and that this was manifest (which means clear) from a UNANIMOUS decision.”

    More dishonesty. It said:

    “That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed ..”

    Saying neither Miller nor the rest of the court were committed in English means the same thing as they were not committed. Is English your first language?

    “For the court to NOT be committed, it would have to result from a split decision. Minor was NOT split.”

    No, when discussing the status of children of aliens, the court did not take a view. Whether iof not they were split on this point, the court did not committ to a view on the subject. You r argument is with Gray not me. He makes unambiguously clear why he is citing Minor. How well it supports his point is another question. However, English is English and there is no dispute as to what Gray says.

    “It was unanimous in excluding children born of citizen parents from the citizen clause of the 14th amendment.”

    Again, just making sutff up and repeating it over and over is not going to impress anyone. It never says “children born of citizen parents” are excluded from the 14th and saying so is dishonest. It says she was a citizen from birth and hence didn’t need the 14th Amendment to be a citizen. She was born before the Amendment. There is nothing that remotely says such persons are excluded from the 14th. What possible interpretation of “subject to the jurisdiction” would exclude her?

    “The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her. That she had before its adoption.”

    She had it long before its adoption. Someone what was a citizen in 1865 didn’t need the Amendment to become a citizen.


  594. ballantine, I’m a layman and can only state what appears to be true rather than in the light you understand. But, the court is presented with someone who has asked in the context of the 14th to be afforded certain political liberties. So, the court examined exactly what they might be…as a citizen without necessity of the 14th. The court’s view of suffrage and US citizenship is wonderfully fascinating.

    “The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.”

    A great quote which follows, “We might, perhaps, decide the case upon other grounds, but this question is fairly made.”


  595. Ballentine, you have been fair to me the whole way along. I hope you will see the my “anchor baby” post for what it was.

    All of A is in group C
    All of B is in group C
    All of A is not in group C

    Snoti picked birther, racists, and bigots, as his A,B, and C. And asked if I get it. I did not think the labels we choose were material, mainly because Snoti labels, if looked into, could never be proven to be “All”. I assumed it was a questiong of logic and reasoning.

    The terms I picked were immaterial to “getting” the equation. But now I think “getting it” ment I am supposed to accept gratuitous slams of a group I am in no position to defend.

    I still believe I followed Snoti’s example perfectly, if it was a logic example. Tough to tell with him.


  596. Don’t pencil in a victory for President Obama in New Hampshire’s Democratic primary just yet. Today, the incumbent president must withstand a legal challenge that again questions his eligibility to seek the country’s highest office.

    At 2 p.m. in Room 307 of the legislative office building, the state’s Ballot Law Commission is set to hear a complaint filed by Orly Taitz, a California lawyer who has continued to question the validity of Obama’s birth certificate and Social Security number since his 2008 election.

    Backing her complaint, Taitz said, are four Republican members of the New Hampshire House: Harry Accornero of Laconia, Larry Rappaport of Colebrook, and Lucien and Carol Vita of Middleton.

    “There’s sufficient controversy that I want it investigated,” Rappaport, a Ron Paul supporter, said yesterday. “Every time this is brought up . . . we get a lot of flak, but we’ve never gotten an answer.”

    http://www.concordmonitor.com/article/293101/birther-challenges-obama?CSAuthResp=1321630857%3Akq4p5cjvnc9ejtf440la3tlec7%3ACSUserId|CSGroupId%3Aapproved%3A63A0FF2A7EA6D910AD49343EF7D1C822&CSUserId=94&CSGroupId=1


  597. @ballantine, you wrote: “Because that is what Gray said in unambiguos terms” Sorry, but this is you being delusional. What he said in unambiguous terms is that the court WAS committed to the view that children born in the country or citizens (Minor case) and foreign subjects (Elk) were EXCLUDED from the citizen clause of the 14th amendment. There’s NOTHING here that says the court was NOT excluded. It said the Miller didn’t understand these other exclusions two years earlier when he wrote Slaughterhouse, but it doesn’t change the rest of the sentence that says the court was committed to the view that these other individuals were EXCLUDED. Read it instead of making up silly nonsense.


  598. “Ballentine, you have been fair to me the whole way along. I hope you will see the my “anchor baby” post for what it was.”

    I see. I wasn’t following very closely. I think the issue of anchor babies will come before the court eventully and represents a very interesting case for the Conservative jurists who claim fidelity to strict constrution or original intent and there is really little in the text or legislative history that support excluding them. It will obviously be a 14th Amendment case but might touch on the NBC clause. Far more likely to get such a case than an eligiblity case.


  599. Technically WKA addresses the anchor baby issue by requiring the parents to have permanent residence and domicil, which would require the parents to be in the country legally. If the parents are subject to deportation or expulsion, the children would be too. Under this doctrine, as expressed in Diaz-Salazar vs. INS, Obama, for example, would have been sent back to Kenya with his deadbeat dad. The only thing that prevented this was that Obama’s mama divorced Barak Sr. before he was told to return to Kenya. Had they not had a sham marriage and had she been a loyal and faithful wife, Obama would have gone back to Kenya too.


  600. ballantine, I would have to agree that Justice Gray understood that their was a distinction between “born a citizen” and “natural-born citizen”. In his citation of Binney the evidence is clear;

    “Mr. Binney in the second edition of a paper on the Alienigenae of the United States, printed in pamphlet at Philadelphia, with a preface bearing his signature and the date of December 1, 1853, said: ‘The common-law principle of allegiance was the law of all the states at the time of the Revolution and at the adoption of the constitution; and by that principle the citizens of the United States are, with the exceptions before mentioned namely, foreign-born children of citizens, under statutes to be presently referred to, such only as are either born or made so, born within the limits and under the jurisdiction of the United States, or naturalized by the authority of law, either in one of the states before the constitution, or, since that time, by virtue of an act of the congress of the United States.’ Page 20. ‘The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ Page 22, note. This paper, without Mr. Binney’s name, and with the note in a less complete form, and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Am. Law Reg. 193, 203, 204.”

    Semantically, if Binney were to have believed that those born of aliens were in actuality “natural born” he would have never said, “The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”

    Mr. Binney made the distinction and thus so did Justice Gray. In fact, that is the fundamental reason the 14th, without reference to A2, can be construed as such in the WKA decision.


  601. “Sorry, but this is you being delusional. What he said in unambiguous terms is that the court WAS committed to the view that children born in the country or citizens (Minor case) and foreign subjects (Elk) were EXCLUDED from the citizen clause of the 14th amendment.”

    Good grief. You don’t understand saying “neither was committed” means they were not committed. Are you serious? It says neither Miller nor the court was understood to be committed from the view that “all children born in the United States of citizens or subjects of foreign States were excluded” from the 14th. Not committed that children of foreign subject were excluded. Do you really not understand that sentence? It says nothing about children born in the country of citizens. Nothing. It doesn’t matter if that was what Minor was about, Gray was interested in the court not taking a position on children of aliens. That was the sole purpose of the quote.

    And Elk did not say children of foreign subjects were excluded and obviously Gray did not think that since such would include Wong Kim Ark. Gray on Elk:

    “The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country.”

    Did you not read that he said Elk “had no tendency to deny citizenship to children born in the United States of foreign parents…” Gray himself wrote the Elk decision. How can you possible say it excluded childern of foreign subjects when Gray says it “had no tendency to deny citizenship to children born in the United States of foreign parents?”


  602. “Semantically, if Binney were to have believed that those born of aliens were in actuality “natural born” he would have never said, “The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”

    Mr. Binney made the distinction and thus so did Justice Gray. In fact, that is the fundamental reason the 14th, without reference to A2, can be construed as such in the WKA decision.”

    You are reading that into his citation. How can there be a distinction if they both are citizens by operation of the same principle which both Gray and Binney say is the English common law. Binney wrote this before the 14th Amendment said we adopted the common law and that a natural born citizden was one born “within the limits and under the jurisdiction” of the sovereign. Neither Binney nor Gray say they are different types of citizens, you are inferring that since he didn’t call children of aliens natural born. Not calling someone natural born doesn’t mean they are not natural born. Gray cites Coke in the same sentence and makes clear the whole paragraph is reciting the English common law rule. Binney says the same thing. There simply is no other type of citizen under such common law other than natural born. There is only one principle and it is that of Coke cited in the same sentence. I suggest you focus on clearer,unambiguous citations like:

    “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. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”

    “The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.”

    “All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.”


  603. “Technically WKA addresses the anchor baby issue by requiring the parents to have permanent residence and domicil, which would require the parents to be in the country legally.”

    You just keep making stuff up. It never says one needs permanent residence and domicil but cites Coke to say:

    “His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;”

    He says:

    “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens,..”

    Includes, not limited tom children of resident aliens. The English rule had no such limitation and such suggested was rejected in the 14th Amendment debates the only time it was brought up..


  604. balantine, I would beg to differ…if it were otherwise the sentence should properly read, “The child of an alien, if born in the country, is as much a natural born child as that of one born of a citizen, and by operation of the same principle.’

    Would you not agree.


  605. “balantine, I would beg to differ…if it were otherwise the sentence should properly read, “The child of an alien, if born in the country, is as much a natural born child as that of one born of a citizen, and by operation of the same principle.”

    That might be clearer. Still doesn’t mean he is saying they are different. Calling someone a citizen does not mean they are not natural born citizens. Again, there is no dispute that Binney was talking aobut the common law and saying they were both citizens by operation of the same principle under the common law. How can they be different if their citizenship comes from the same principle and there is only one type of citizenshp by birth under the common law. Are you saying that a paper on the English common law defined “”natural born” different than the English common law.


  606. That should have been “All of A is not in group B”

    Ballentine, I think this illustrates an obsession equivalent to the birthers. There are more than five distinct terms in the minor quote. Snoti pretends there are only three but will not reveal how he concludes that. His students must not be required to show their work.

    Getting hung up on defining the terms individually before making the equation, that shows the relationship of the terms, is his mental block.

    Too bad. At least Otay Scribble will help him with spell check, if that keeps him from lying again. Assuming it was unintentional.


  607. Binney seems pretty adamant about jus soli citizenship and reinforces the narrow “citizenship by birth” (i.e right of citizenship) argument without mention of the citizenship of the parents. Pure jus soli, which of course is attractive to a court defining “born” subject to the jurisdiction. Gray’s use of Binney removes the complication of whether those so identified are eligible for the presidency due a parsing of the amendment’s measure of “incident of birth”.

    “The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute.”


  608. Komfy,

    If you’re such the expert that you know how I got it wrong, then there is an easy solution–do it the right way yourself and explain why you are right. I’m not going to show my work for you (or anyone–unless I want to) and good faith would require making a formal objection to a formal argument (that being the point–to identify where and how we disagree). To start with, you say there are 5 lights*… er… 5 logical objects in the quote from Squeeky that I addressed. What are they? Also, why was I wrong in saying that “citizen” referred to the class “natural born citizen” in the greater context of the quote? (hint: did the term apply to Virginia Minor?)

    Look, if you want to fight on my playing field, feel free–but you’ve got to play by the rules or reveal yourself to be nothing but the birther troll I’m guessing most people reading this see you as. I hope you try… it will be amusing for everyone and you might even learn something–a win-win! ;-)

    * THERE. ARE. FOUR. LIGHTS.


  609. Komfy and his birther chorus:

    By the way, you have been grossly misusing the term “equation”–here’s a tip, if you don’t see one of these: “=” (or some other symbol for a type of congruence), then it probably isn’t an “equation”. Just sayin’…


  610. “Are you saying that a paper on the English common law defined “”natural born” different than the English common law.”

    ballantine, are you throwing semantic wrenches at me? Ha! I’m not certain I can answer succinctly…I think the answer is complicated. First, ECL had understanding that natural born subject-hood was held as distinct classes depending of the parents’ relationship to the crown. All natural born, but different. Second, the history of understanding of natural born changed significantly between 1600 and 1800 in merry ole England. I have been convinced for some time that when one quotes ECL, it is required to put some framework on the reference so as to differentiate with a terms use at another time. Same words, slightly different meanings.


  611. Biiney entire paper was that we adopted the English common law. Why wouldn’t that mean that “natural born citizen” means the same think as “natural born subject” which Binney actually says in his paper. Binney says there are two types of citizens:

    “The common law principle of allegiance was the law of all the States at the time of the Revolution and at the adoption of the Constitution, and, by that principle, the citizens of the United States are, with the exceptions before mentioned, such only as are either born or made so, born within the limits and under the jurisdiction of the United States or naturalized by the authority of law, either in one of the States before the Constitution or, since that time, by virtue of an act of the Congress of the United States.”

    So before the 14th Amendment was adopted Binney said there were two type of citizens under the English common law that we adopted, those born born within the limits and under the jurisdiction of the United States and naturalized citizens. Only two types and by birth and natualization are not the same principle.

    He makes clear the “within the limits and under the jurisdiction” language is referring to natural born citizens:

    “But the law of France rejects the principle of the English law, and of our own laws, that birth within the limits and jurisdiction of France, makes a Frenchman, or a natural-born citizen or subject of France, absolutely,…” Horace Binney, American Law Register, 2 Amer.Law Reg. 206 (February 1854).


  612. “First, ECL had understanding that natural born subject-hood was held as distinct classes depending of the parents’ relationship to the crown. All natural born, but different. Second, the history of understanding of natural born changed significantly between 1600 and 1800 in merry ole England. I have been convinced for some time that when one quotes ECL, it is required to put some framework on the reference so as to differentiate with a terms use at another time.”

    No there was only one type of natural born subject at common law. Later status deviated from the common law and conferred such status on certain foreign born persons but they were not treated as common law natural born subjects. They didn’t have all the rights and didn’t owe the same allegiance. There were only two types of subjects at common law and Binney tells us there were only two types of citizens prior to the 14th Amendment, only one of which was by birth.


  613. I’d like to take us a bit afield for a moment if you don’t mind. For clarity (presuming you don’t quickly figure it out ) let me start by saying that I am a birther and I am not a lawyer.

    In reading through (most of) this thread, three things strike me. 1.) ‘natural born citizen’ is not defined beyond the limited definition found in Mv.H and 2.) that persuasive arguments can be made on both sides and that 3.) a SCOTUS decision would likely depend more on the makeup of the panel (politics) rather than the validity of the arguments. Scary.

    It seems clear to me that constitutional authors were concerned about foreign influence on the administration as evidenced by Jay’s letter to Washington and other writings of the time. My question is, “Are we less concerned about foreign influence on the administration today than we were in 1787?” My answer is a resounding “NO!”

    There is some evidence, though hardly conclusive, that our POTUS is a closet Muslim. I don’t know one way or the other but his parentage, his early life and some of his actions as POTUS make that a distinct possibility. By reading the ‘natural born citizen’ clause to mean simply Jus Soli, did we make a mistake? Could we make a similar, and possibly much worse, decision in the future without proper guidelines preventing it?

    Frankly, I think that the U.S.of A. is headed down the tubes because we don’t figure into End Times prophecy so this may all be moot anyway but I just don’t understand anti-birthers who seem intent on bringing down this great country by weakening the Constitution in this way? Does that make sense or am I being blinded by my constitutionally conservative bent?

    OK, rant mode off. Y’all are now free to continue where you left off.


  614. ballantine, you obviously didn’t need a history lesson. I would think that some of your understanding is why the entire matter has become convoluted by the court and by folks like me. Very little understood clarity exists for those born subjects-citizens, common law and the natural born. Binney, in my understanding, recognizes both…both are born subject-citizens. I think there is no error in his writing or the understanding that comes from reading. The English history of subject-hood has muddied the conversation. Maybe not ours, but in general.

    MvH was explicit in its detail of what constituted A2 natural born. The WKA court used an incredible sum of nuance and inference to create the plausibility for the singular application of jus soli born citizenship. Which I am not critical of out of hand.

    It’s worth mentioning that in a battle of who knows the law, I’m not much of a challenge.


  615. “MvH was explicit in its detail of what constituted A2 natural born.”

    Why would you say that? The court says we should look to the common law of the founders which of course means Blackstone. It divides the world into two classes just like Blackstone. Yet it then fails to state Blackstone’s rule only identiying one class and refusing to tell us how the rule applies to the other class. Considering the issue of citizenship was never raised, briefed or argued, I guess it isn’t that surprising that the paragraph contradicts itself. Either the term is defined by the common law or not and there is no dispute what the common law rule is if in fact the court actually looked at the issue.


  616. 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. 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, but never as to the first. For the purposes of this case it is not necessary to solve these doubts

    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”(A) became themselves, upon their birth, “citizens”(B) also. These were “natives”(C), or “natural-born citizens”(D), as distinguished from “aliens”(E) or “foreigners”(F). Some authorities go further and include as “citizens”(B) “children born within the jurisdiction without reference to the citizenship of their parents.”(G) As to this class(G) there have been doubts, but never as to the “first”(A). For the purposes of this case it is not necessary to solve these doubts

    At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that (A) became themselves, upon their birth, (B)
    These were (C), or (D), as distinguished from (E) or (F).

    Some authorities go further and include as (B), [group](G). As to (G) there have been doubts, but never as to (A). For the purposes of this case it is not necessary to solve these doubts.


  617. If your purpose is to obfuscate, you would naturally ignore the possibility of being wrong. If your purpose is in good faith, you do not go about insulting those who debate against your argument, and if you do want to insult because it is your nature of who you are, at least you would do it consistently. This very thread is evident of that. Here we have the owner of this thread, who has disagreed with many, yet no name calling is fired his way. Go figure.


  618. Prsmithsr said; “1) ‘natural born citizen’ is not defined beyond the limited definition found in Mv.H and 2.) that persuasive arguments can be made on both sides and that 3.) a SCOTUS decision would likely depend more on the makeup of the panel (politics) rather than the validity of the arguments. Scary.”

    Answer:

    1) MvH is not a definition. It simply said the equivalent of “it was never doubted that if you wore both suspenders and a belt your pants would stay up.”

    Then it said that some authorities went further and argued that just a belt would do. Then it said that it did not have to decide.

    Obviously that is not a decision, and the use of pants+belt, while perhaps ideal, is not required. In short, MvH did not give a definition.

    2) Persuasive arguments cannot be made because A. Neither the US Constitution nor any of the writings of AMERICANS (Swiss writers do not count) say that two citizen parents are required; B. The Wong Kim Ark ruling says that every child born in the USA (other than the children of foreign diplomats) is Natural Born.

    3) A SCOTUS Decision would be unanimously or nearly unanimously against the two-parent theory with all or nearly all of the conservatives likely to vote with the liberals because if they are strict-constructionists they will vote on the basis that “if the Constitution does not say it, the Constitution doe not mean it” (and the Constitution does not say it, nor does any of the writings of Americans at the time). If they are originalists, they will do their research and find that the meaning of Natural Born Citizen in America (not Switizerland) at the time referred to the common law and meant citizenship due to PLACE (not parents, which is a continental European idea and not one that was in use in America or Britain).

    The liberals, of course, would all vote against the two-parent theory. Some would make strict-constructionist arguments, others would make originalist arguments. Some would make the point that the American leaders who had written: “We hold these truths to be self-evident, that all men are created equal” would be highly unlikely to consider that the US-born children of foreigners were likely to be less reliable than the US-born children of US citizens WITHOUT TELLING US ABOUT IT.


  619. “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”(A) became themselves, upon their birth, “citizens”(B) also. These were “natives”(C), or “natural-born citizens”(D), as distinguished from “aliens”(E) or “foreigners”(F). Some authorities go further and include as “citizens”(B) “children born within the jurisdiction without reference to the citizenship of their parents.”(G) As to this class(G) there have been doubts, but never as to the “first”(A). For the purposes of this case it is not necessary to solve these doubts

    At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that (A) became themselves, upon their birth, (B)
    These were (C), or (D), as distinguished from (E) or (F).

    Some authorities go further and include as (B), [group](G). As to (G) there have been doubts, but never as to (A). For the purposes of this case it is not necessary to solve these doubts.”

    In other words, thanks for following consistency and completeness.


  620. Mrjr101, I really don’t get how he misses this. I am starting to think it is intentional.


  621. Komfort,

    Even Barry Bonds strikes out with bases loaded.


  622. “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”(A) became themselves, upon their birth, “citizens”(B) also. These were “natives”(C), or “natural-born citizens”(D), as distinguished from “aliens”(E) or “foreigners”(F). Some authorities go further and include as “citizens”(B) “children born within the jurisdiction without reference to the citizenship of their parents.”(G) As to this class(G) there have been doubts, but never as to the “first”(A). For the purposes of this case it is not necessary to solve these doubts

    At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that (A) became themselves, upon their birth, (B)
    These were (C), or (D), as distinguished from (E) or (F).

    Some authorities go further and include as (B), [group](G). As to (G) there have been doubts, but never as to (A). For the purposes of this case it is not necessary to solve these doubts.”

    I don’t get your point. How does this impact whether children of aliens are natural born other than by pointing out the court declined to address the issue? Waite only distinguishes natural born citizens form aliens, not any other type of citizen. This is what Blackstone said as everyone was either natural born or alien born. Waite said some thought children of aliens were citizens and didn’t say they were tight or wrong. Saying he was saying they were some type of citizen other than “natural born” is making stuff up. He never says that. There was only one type of citizen at common law.

    No one has answered why the court said we should define “natural born” by the common law which means the common law of Blackstone but then doesn’t state the common law rule of Blackstone. Can anyone cite a single authority in history who said there were doubts about whether children of aliens were natural born under the common law? No. Doesn’t seem to exist. Did Justice Waite find such a person we cannot find and not tell us who he was and what doubts he had? Did Justice Waite just not research the issue since citizenship was not contested, briefed or argued and the status of children of aliens was not before the court? Engaging in this type of speculation is useless. When dealing with precedent, the Court does not make us speculate. Simply stated, nothing in Minor can be construed to indicate that children of aliens are not natural born. It simply doesn’t say that. It says it didn’t address the issue but we all know what the Court would have found if it did look at the common law. There never has been any dispute about the common law rule.


  623. Komfy,

    Just admit that you don’t understand formal logic–then you can stop embarrassing yourself…

    A bigot is someone who is prejudiced against another person or group.

    A racist is someone who is prejudiced against people of a particular race.

    All birthers are people who are prejudiced against President Obama

    No birther can say “shibboleth”

    Non-birthers can say “shibboleth”

    All birthers are bigots due to their prejudice.

    You can’t say “shibboleth”, ergo you are a birther and thus a bigot.

    QED

    Bdaman,

    I wish Orly all the publicity she can whore herself out for–the more public her FAIL is, the better for President Obama…


  624. Komfy,

    I don’t have time to address your idea of a formal argument (which is slipshod and half-assed at best) right now, but I will later. However, I would note that: you didn’t address the quote that Squeeky gave (which I addressed at your request) and that you did nothing more than make a few definitions and parrot the quote you chose using those definitions. In other words, you added absolutely nothing of value in your “analysis”.


  625. I don’t care if you address it. Your work cannot be trusted.

    Ballentine. Group G can only be part of group B after any doubts are resolved. Do you agree?


  626. “Ballentine. Group G can only be part of group B after any doubts are resolved. Do you agree?”

    No, first he has to tell us who had doubts and what the doubts are. You can look all day and will not find any legal authorities saying their are doubts under the common law. Waite’s statements make no sense. It simply looks like a Justice speaking about something that was not argued, briefed or researched which he tells us he will not examine. It means nothing unless he explained why he thinks someone thinks the common law means something everyone else said it didn’t.

    But you don’t have to speculate as Wong Kim Ark cited a zillion authorities on the common law none of which had any doubt. I really find it hard to believe that a court saying “natural born” must be defined by the English common law, a court that repeated over and over that someone of WKA’s status was natural born under such common law, that such definition of natural born subject prevailed under the Constitution, that natural born citizen in the Consitution “was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth,” that “natural boirn subject” meant the same thing as “natural born citizen” leaves any doubt to anybody. Why do people keep citing an option that expressly declined to address the status of children of aliens under the common law when a later decision spend 20 pages discussing the status of children of aliens under the common law?


  627. Slarti:

    I am not a birther but I am against Obama’s policies.

    S = all birthers
    P = people against Obama
    Sr = all birthers who are racist
    Pr = people against Obama who are racist
    Cs = Herman Cain supporters

    Sr is a subset of S
    P includes the sets S, Cs, Sr and Pr

    for your statement to be true no S could be Cs. Since most S are probably republicans, the chances that no Cs are contained in S is highly unlikely.

    I think your brush is too wide.


  628. I am picking the exact quote WKA picked.

    Based off the quote, and excluding anything not in the quote. Is G in any group other than B after the doubts are resolved?


  629. It’s sad to see all of this mixed with politics, racism, prejudice, instead of mere if A then B. It’s repulsive actually.


  630. Bron,

    I’ll address my choice of brush size when I get to Komfy’s laughable pseudo-logic (why do people who don’t understand something think that they can bullshit those that do? I’ve seen it many times grading Calc exams…) By the way, do you think my “work is no longer trusted”? ;-)

    Komfy,

    I think you’ll find, in my response, that the record is not your friend here… Just something for you to ponder as you breathlessly await my response.


  631. mrjr101,

    Personally, I find birthers to be a bunch of repulsive, dishonest seditionists and I think I have the right to voice that opinion.


  632. Your opinions are interesting, Ellen, but I don’t find them either credible or convincing as is proved by the length of this blog thread but more importantly, you failed to answer my question, Why would we not want to limit who can be our POTUS in order to minimize foreign influence on the administration of this country?

    On a related note, here’s something else that bothers me. . .Why can’t a naturalized citizen be our POTUS? If we’re going to accept an anchor baby that could have close ties to Iran, China, Saudia Arabia, Botswana or the South Pole, wouldn’t a citizen who has consciously chosen to give up foreign citizenship (old rules) and swear allegiance to America be just as ‘qualified’? Which reminds me. . .What idiot decided that dual citizenships was a good idea? (yes, I know is was the SCOTUS – doesn’t change the function of the question.)


  633. “I am picking the exact quote WKA picked.”

    WKA only picked that quote to demonstrate that Minor was not committed to a view on children of aliens. They punted on the issue and hence is not authority. Why not look at the multitude of citations from the WKA court that addresses the status of children of aliens under the common law making clear there was no doubt rather than focusing on a quote that says nothing on the issue other than it is not adressing the issue?


  634. “Why would we not want to limit who can be our POTUS in order to minimize foreign influence on the administration of this country?”

    Your issue is with the framers. The only thing they discussed was limiting the foreign born from being eligible which was the English rule. No one suggested anything else. Here is the father of our Constitution on the issue from the Convention:

    “There was a possible danger, he admitted, that men with foreign predilections might obtain appointments; but it was by no means probable that it would happen in any dangerous degree. For the same reason that they would be attached to their native country, our own people would prefer natives of this country to them. Experience proved this to be the case. Instances were rare of a foreigner being elected by the people within any short space after his coming among us. If bribery was to be practised by foreign powers, it would not be attempted among the electors, but among the elected, and among natives having full confidence of the people, not among strangers, who would be regarded with a jealous eye.”


  635. Snoti, I would only hold my breath if we met, to avoid your stench. Otherwise I am waiting on nothing else you may say.

    Komfort is never friends with a bully

    Snoti is a bully

    Only a true friend can tell a person something they do not want to hear.

    I conclude that you will need to seek out one of your friends to resolve your trust issue, as I do not fit the formulation.


  636. Ballentine, since they picked it to show the lack of commitment, that the court in Minor had, to the view of children of aliens, shouldn’t we see what they did not commit to?

    Did they not commit that G would be part of B, or did they not commit that G would be part of A.


  637. To discover truths is the task of all sciences; it falls to logic to discern the laws of truth. … I assign to logic the task of discovering the laws of truth, not of assertion or thought.” – Gottlob Frege (1848-1925)


  638. Of course our issue is with the framers – otherwise we wouldn’t be going through this exercise. The framers notwithstanding, however, my question related to today – not yesterday. Are we not just as concerned with foreign influence TODAY as our forefathers were yesterday? I know that I am and I fail to understand why y’all aren’t. Does Barry really mean all that much to y’all?.


  639. “Ballentine, since they picked it to show the lack of commitment, that the court in Minor had, to the view of children of aliens, shouldn’t we see what they did not commit to?

    Did they not commit that G would be part of B, or did they not commit that G would be part of A.”

    I think you have it wrong. Look, Justice Miller essentially said Wong Kim Ark would not be a citizen under the 14th Amendment. Obviously this is contrary to Gray’s holding. Accordingly, Gray tells us why we should not listen to Justice Miller. He says his statement is dicta and to show the he and his court were not committed to such dicta by showing the same court in Minor did not take a position on the subject. Gray is not saying he agrees there are doubts. He is saying another court had doubts. Gray decision cites authority after authority on the common law which unambiguously state that children of aliens are included. Why are you focus on another court which said it would not address the issue having doubts where nothing in gray’s opinion said there were doubts. He said natural born was to be defined by the English common law, left no doubt what the English common law meant and told us the definition of natural born subject prevailed under our Constitution. Why don’t you focus on this quote:

    “The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.”

    What does that mean? How about tis quote:

    “All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.”

    How many times did Gray tell us WKA would be a natural born subject before telling us natural born citizen meant the same thing?


  640. prsmithsr asked: “Why would we not want to limit who can be our POTUS in order to minimize foreign influence on the administration of this country?”

    The simple answer is that we did set a limit, the Natural Born Citizen requirement excludes two categories of foreign and foreign-related people from becoming president.

    It excludes non-citizens (you have to be a US citizen to be a Natural Born Citizen), and it excludes naturalized citizens.

    Perhaps it should not exclude naturalized citizens. There have been many attempts over the decades to amend this requirement. In the 1950s, I recall, the backers of an amendment used the argument that Irving Berlin, the writer of God Bless America, would not be eligible—which is true, and sad, but the fact is that that is the way that the Constitution reads now. It can be amended, but that is the way that it reads now.

    A more complete answer is that all requirements are arbitrary. The eligibility requirement excludes foreigners and naturalized citizens and persons under the age of 35, but it does not exclude US criminals. They are eligible. Why are they eligible? Well, why not?—we are supposed to have a choice in the election. The same thing on the US-born child of a foreigner. Why are they eligible? Because it is up to the voters to decide whether or not they consider such a person to be a security risk.

    Moreover, the extent of the writers’ concern about foreign influence is limited. Sure, there is some concern—but how much?

    Consider this. To be eligible, a person must be at least 35 and have spent at least 14 years residing in the USA. If they were really concerned about foreign influence, they could have said that only someone who had spent ALL of her or his life in the USA was eligible. Or they could have said 75% of her or his life in the USA before the election. But the 14-year requirement allows someone who is 65 at the time of the election to have spent 51 years or about 78% of their life outside of the USA, under foreign influence. Does that seem like very much concern to you?

    prsmithsr also asked: “Why can’t a naturalized citizen be our POTUS? If we’re going to accept an anchor baby that could have close ties to Iran, China, Saudia Arabia, Botswana or the South Pole, wouldn’t a citizen who has consciously chosen to give up foreign citizenship (old rules) and swear allegiance to America be just as ‘qualified’? “

    The answer is that that is the meaning of Natural Born. It excludes naturalized citizens. Should it? Probably not, and that is why there has been so many efforts to change it, but it does. Our system allows people to try to change the Constitution through amendments. Some people want to make naturalized citizens eligible. Other want to make anchor babies NOT eligible. If either of these passes, it would become the law, but neither has passed.

    Re: “What idiot decided that dual citizenships was a good idea?

    Answer. You have something against Thomas Jefferson and James Madison?? BOTH of them were actually dual citizens when they were president (both were made full voting citizens of France by the French National Assembly)—-as opposed to Obama, who was once a dual citizen, but that lapsed many years ago.

    However, a fuller answer is that the meaning of the phrase Natural Born Citizen does not exclude dual citizens. If you would like it to do so, you can push for an amendment to the Constitution to that effect, but it doesn’t.

    Re: “Your opinions are interesting, Ellen, but I don’t find them either credible or convincing…”

    Answer: I am not attempting to convince you. I write for anyone with an open mind who may be reading. The fact is that there are NO articles or letters at the time of the writing of the Constitution that said that the US-born children of foreigners should be considered too risky to trust with the presidency.

    There being no such evidence, we can assume that the writers of the Constitution held ‘’these truths to be self-evident, that all men are created equal”—at least as far as the equality of US-born children of foreigners and US-born children of US citizens are concerned.

    IF you personally feel that the US-born children of foreigners are likely to be more of a security risk than the US-born children of US citizens, you can push for an amendment.


  641. I am sure Snoti is working on letters to correspond to Miller’s and Gray’s quotes. But for the quote at hand, what group does G fit in after the doubts are resolved?


  642. The Donofrio Challenge: Proving Obama’s Ineligibility Based On Supreme Court Precedents

    http://jeffersonsrebels.blogspot.com/2011/11/donofrio-challenge-proving-obamas.html


  643. “Are we not just as concerned with foreign influence TODAY as our forefathers were yesterday?”

    That is an interesting question. My interest here comes from a serious paper I have written on the anchor baby question which I need to finish blue booking one day. My research shows that the same arguments concerning immigration have been going on from the beginning of the republic. In the 1790s there were people who wanted unlimited immigration and nativists who worried about foreigners not assimilating and would create a multi-cultural society. The same arguments as today. The debates about the Chinese sounded exactly like the debates on muslims today as many thought non-christians asians would never assimilate. I think the difference may be we don’t have the open territory we used to have and we have a terrorism issue that didn’t exist back then so it probably is a more heated issue today.


  644. “But for the quote at hand, what group does G fit in after the doubts are resolved?”

    If Waite had looked at the rule “at common law” he would have found that (b), (c) and (d) all meant the same thing as everyone was either natural born or alien born. (G) would be in the same class as well. From Blackstone:

    “The first and most obvious division of the people is into aliens and natural-born subjects.”

    Or one could look to Cockburn as cited by Justice Gray as cited by Justice Gray:

    “By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.”

    Or Justice Gray’s own words:

    “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..The same rule … continued to prevail under the Constitution as originally established.”


  645. @ballantine, it doesn’t say “neither was committed.” It says neither “understood” … two years earlier. It’s not about them NOT being committed. If they weren’t committed, they wouldn’t have voted UNANIMOUSLY in Minor.

    What Gray wrote about having “no tendency to deny citizenship” to children of foreign parents is Gray fudging over his earlier decision which did exactly that. I’ve already explained this when he tried to claim and “alien nation” is different than a “foreign state.” Second, Gray ignores his OWN words saying that subject means COMPLETELY subject. He’s nuancing himself over his own previous decision. He knows his position was weak, which is why he spent so much time compiling common-law citations and emphasizing the importance of domicil.


  646. Ballantine answered this question:

    ““Are we not just as concerned with foreign influence TODAY as our forefathers were yesterday?”

    And it was a good answer.

    But prsmithsr was really asking whether or not we today consider that the US-born children of foreigners are more likely to be security risks than the US-born children of US citizens than was the case at the time that the Constitution was written.

    The answer to that is most likely no, we do not.

    We think that children born in American and raised in America are highly likely to be good US citizens. The writers of the US Constitution probably did too, but we do more. We have the actual evidence that the US-born children of foreigners usually turn out to be good citizens and not security risks.

    There are three excellent examples on the US Supreme Court: Justices Alito and Scalia and Chief Justice Roberts–whose mother’s maiden name was Podrasky.


  647. “@ballantine, it doesn’t say “neither was committed.” It says neither “understood” … two years earlier. It’s not about them NOT being committed. If they weren’t committed, they wouldn’t have voted UNANIMOUSLY in Minor.”

    You simply cannot deny what Gray says in plain English. He says no one on the Slaughterhous court “understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded” from the 14th amendment. No one was committed that children of aliens were excluded becuase the same court refused to take a positition on children of aliens in Minor 2 years later. Really, I think a child could understand that. You are intent to keep saying up is down and black is white. doesn’t change the plain English. The Minor court was committed on children of citizens, they were not committed on children of aliens. Hence the unanimous statement on children of citizens and the failure to make a committed statement on children of aliens.

    “What Gray wrote about having “no tendency to deny citizenship” to children of foreign parents is Gray fudging over his earlier decision which did exactly that.”

    No, you are claiming Elk says something it does not. Gray equates children of indians with aliens born in a foreign country. Gray knew what he wrote. You are misrepresenting it.

    “Second, Gray ignores his OWN words saying that subject means COMPLETELY subject.”

    And why would children of aliens not be “completely subject.” Who ever said they were not. Such line comes from Congress when it was being pointed out that we didn’t competely control the territory these indians lived on.

    “He knows his position was weak, which is why he spent so much time compiling common-law citations and emphasizing the importance of domicil.”

    Sorry but you saying his position is weak means nothing. There is nothing inconsistent between his Elk decision and WKA if you actually read the cases. And he never emphasized the importance of domicile. He said the 14th Amendment included children of resident aliens, the situation of WKA before the court. He never said it was necessary and cited multiple authorities saying it was not. For example from Cockburn:

    “By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country..”


  648. @ballantine, I’m not denying what Gray said in plain English. I’m explaining it to you because you don’t understand it and you’re inventing ridiculous nonsense that was never said. You’ve inserted a NOT that is NOT there. You’ve ignored the rest of the context. It doesn’t matter what the justices understood or didn’t understand in Slaughterhouse because they were unanimously COMMITTED in the Minor decision that NBCs are EXCLUDED from the citizen clause of the 14th amendment. This is historical fact. Gray is not denying that. That’s what a unanimous decision expresses … commitment. Slaughterhouse, which was NOT unanimous is NOT a commitment. Nevertheless, Gray still accepted part of the finding in Slaugherhouse. The only thing he took exception to was the equivalence of consuls with ministers.

    The citation of English common law was ONLY used by Gray to strengthen the 14th amendment. It’s not used to supercede Minor’s definition of NBC. Second, that common law as applied in our country allowed persons born on U.S. soil to be British subjects. Under WKA’s definition, Obama is STILL a British subject and NOT a U.S. citizen, neither as an NBC NOR as a 14th amendment citizen.


  649. Slarti:

    “why do people who don’t understand something think that they can bullshit those that do?”

    3 reasons in my mind:

    1. they dont know what they dont know and dont really have a mastery of a subject themselves to understand the time and effort it takes to develop said level of knowledge.
    2. they “know” a lot which isnt so.
    3. they are just fucking with you. :)


  650. To Everybody Who Is Interested:

    Apparently, Leo Donofrio is getting out of the two citizen-parent Birther stuff. That is MY take on it. The Kitchen Got Too Hot??? I did a Internet Article on it:

    http://birtherthinktank.wordpress.com/2011/11/18/the-paraclete-gives-up-the-ghost/

    Peace be unto you, Leo!

    Squeeky Fromm
    Girl Reporter


  651. According to Jazz’s link, your BFF can still talk to him about it.


  652. This is becoming comical. You really think “neither was committed” means “they were committed?” Some people just can’t admit they are wrong. I keep quoting what Gray actually says and you can’t deal with it. He says he is citing Minor solely to show no one on the Slaughterhouse court was committed to the view that children of foreign subjects were excluded under the 14th amendment. No ambiguity. That is what he said and saying otherwise is lying.

    And all the citations to the common law were before the court even addressed th 14th amendment. The court spend the first 22 pages addressing the law of citizenship prior to the amendment stating natural born citizen must be defined by the English common law, telling us what such common law rule was, telling us such common law definition of “natural born” prevailed under our constitution and and that natural born citizen was defined by place of birth and meant the same thing as natural born subject. Have you ever read these parts of the decision? For my edification, can you please explain why Justice Curtis’ and Swayne’s quotations were included relating to natural born citizenship?. How do they support your position? They obviously do not and were not talking about the 14tg amendment.


  653. Komfort:

    My BFF Fabia Sheen, Esq., a lawyer, can’t stand this stuff. She says it is all stupid. I have to twist her arm most of the time to even get her to read this stuff. Plus, she would have to give her REAL name and bar information. That is not safe for women to do stuff like that, which is also why I use a nom de plume. (nickname).

    For all practical intents and purposes, The Paraclete ain’t gonna git many takers from the Vattle Birther side. Plus, he will lose his wahoo non-lawyer audience. OH, I can just hear the wailing and gnashing of teeth from Danae and her pack if they can’t post comments there.

    I am just proud to have played my part in exorcising him. I wonder which Internet Article of mine drove him out??? “The Missing Link” one, or the “Alternate Reality Universe” one??? “The Case of the Sleeping Case???” Maybe it was “What Part of Doubts Don’t You Understand???” I am betting the “Alternate Reality” one.

    I do feel sorry for whatever herd of pigs his spirit has inhabited. Poor things will probably turn stupid, and forget how to eat and then starve to death. I hope the Demon leaves them and returns to him soon before that happens. PETA, too.

    Squeeky Fromm
    Girl Reporter


  654. Ok Squeeky, got it. Gotta have some skills to sense a ghost. It sucks you’re gonna have to bust through a third party .


  655. @ ballantine. The only thing that is comical is how you keep writing something that wasn’t said: Here’s what you wrote:

    “This is becoming comical. You really think “neither was committed” means “they were committed?””

    The sentence doesn’t say “neither was committed.” This is you paraphrasing and doing so poorly. Here’s what the sentence actually says:

    “That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed …”

    It’s time for YOU to be intellectually honest. It says neither justice understood the court to be committed. It does NOT say “neither was committed.” Do you understand??? “The court to be committed” is a positive expression, not a negative expression, and this is further borne out (pun intended) in context because Minor was a UNANIMOUS decision. The court was completely committed in Minor because they voted unanimously in Minor.

    I admire a good imagination, but in this case, it doesn’t serve you well. That you don’t understand what these decisions say is manifest from your commitment to writing misinterpretations over and over.


  656. It would be quite educational to see a lawyer go head to head with him, don’t you think?

    I wonder who will bite on his invitation.


  657. That is not safe for women to do stuff like that, which is also why I use a nom de plume. (nickname).

    To do what stuff? To give out her name? Why would she be afraid? Just wondering…


  658. mrjr101:

    That is no problem for me. Of course it helps that my REAL nickname REALLY is Squeeky, which is what I have been called since I was a little girl like 3 or 4 years old because of my voice. I was also called “The Mouse” because of that.

    Sooo, in one way, I am clobbering Leo Donofrio WITH LOGIC in the first person.

    Squeeky Fromm
    Girl Reporter


  659. slcraignbc,

    So you are just going keep saying you are right over and over without citing any authority to back you up. I pointed out that the Supreme Court stated that our naturalization statutes didn’t change the fact that we followed jus soli birthright citizenship. That the Supreme Court and Congress said people born on US cannot be naturalized. That the Supreme Court said both before and after 1866, native born children of aliens were native born citizens.

    So, let’s be clear, you are either saying that the Courts write Law or that the Congress does not have plenary power over naturalization…right…?

    I say that because the Laws regarding Citizenship are clear, insofar as concerned immigrants pre 14th,

    If the Courts choose not to follow the acts of the Congress, as Judge Gray did in WKA, which led to the Chinese Exclusion Act, the Congress often writs Laws to counter some legal or technical conclusion that the Courts arrive at, just as the 14th was written to overcome the CORRECT decision in Scott v Sandford after the conclusion of the Civil War.

    Scott v. Sandford () 100 U.S. 1

    It is true, every person, and every class and description of persons who were, at the time of the adoption of the Constitution, recognised as citizens in the several States became also citizens of this new political body, but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State [p407] which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.

    By birthright or otherwise, (read naturalized)….because the Congress had no right to establish any other means of acquiring Citizenship.

    Birthright was/is a benefit of Citizenship no matter where in the world a Citizen may give birth to a child.

    But NO alien foreign national is entitled to Citizenship by any other means than the naturalization process which may includes the making immediate family members also with proper application.

    Until you can show me the STATUTORY LAW that provided jus soli prior to the 14th I will continue to cling to the Constitutional Rule of Law as it existed as exists.

    The very FACT that the WKA case was necessary argues against your position, notwithstanding the FACTS which Judge Gray ignored which would have led him to a contrary opinion.


  660. Komfort:

    I think The Paraclete would have trouble with even a non-lawyer. I mean, all you have to do to bust him out is be able to read and comprehend English. Just little old me, at The Birther Think Tank, has manged to send him scurrying for cover. Where I bet his bottom is sooo sore he still can’t sit down.

    mrjr101: Fabia and me both are careful about what we put on line. This stuff is political and some of the Vattle Birthers are like these Sovereign Citizen people. We can take care of ourselves, but plus we like our nicknames. I had to think of Fabia’s for her because she first wanted to be Josie Cottonmouth, because she hates men, but I had to explain to her most people did not know about her favorite song:

    Squeeky Fromm
    Girl Reporter


  661. “It would be quite educational to see a lawyer go head to head with him, don’t you think?

    I wonder who will bite on his invitation.”

    Have any lawyers commented on his blog in the past? If they havn’t, why should they now? Do they think it’s all a joke?

    There is a famous line from Forrest Gump that says, “Stupid is as stupid does.”

    If BFF thinks this birther stuff is all stupid, and Squeeky ask BFF for help on birther stuff, and BFF goes on to research on it anyway, then who is following stupidity, Squeeky or BFF?


  662. mrjr101:

    You asked:“It would be quite educational to see a lawyer go head to head with him, don’t you think?

    Not really. Leo just wants to do it on his own turf where he can control the dialogue, and what gets thru. Leo had a chance here to debate lawyers, and he bit off part of tongue he said “Peace be with you” sooo fast.

    This is typical control freak stuff. Leo Donofrio is scairt of having to back his silliness up. I think he wants off this merry-go-round because he realizes how badly he is messing up his professional reputation. He is trying to salvage it by chasing the Vattle Birther idiots off his website.

    After a respectable time has passed, I would not be surprised to see him come out and say he is either a deep-cover Obot who has been punkin’ Birthers to see how crazy they would get, or that this was a just performance art.

    Who knows but maybe it is even true. I

    Squeeky Fromm
    Girl Reporter


  663. Squeeky, before Donofrio was slammed off of this thread, I noticed the author politely engaged him, resulting in the author rewriting his initial post from a comment of Leo. It also seems the author agreed that Lockwood did cite Minor in a meaningful manner. This too as a result of open discussion with Donofrio.

    I wonder how far he would get in a non-vulgar setting?

    I decided to stick around after Nal determimed that WKA did not define who shall be a natural born citizen. Look how I have been treated for Nal’s preliminary analysis. Think of what could have been accomplished.


  664. Shall we revive the exchange for the sake of saving this thread? I would like to stick around for a final answer on WKA/Minor dicta.


  665. Komfort and mrjr101:

    I don’t think the argument would have gotten far if Donofrio had hung around. :)

    As far as the dicta-nondicta argument, it is interesting, but not conclusiive on this stuff. If you will look above, and elsewhere I have never thought the Minor stuff was just dicta. Instead, I have said that it is not precedent for determining NBC. See, for example, my “Precedent Evil – The MHV Virus Spreads Beyond Squirrel City!!!”

    http://birtherthinktank.wordpress.com/2011/10/28/precedent-evil-the-mhv-virus-spreads-beyond-squirrel-city/

    In that I note again that the Ankeny court said about Minor v. Happersett:

    Id. at 167-168. Thus, the [Minor] Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.12

    I have mentioned that here on this thread several times, and none of Leo’s Defenders have addressed that. Note that the Ankeny Court did NOT say the language was dicta, they just read it and understood that the Minor Court left the issue open.

    As Fabia Sheen, Esq. also points out repeatedly to the thick-headed Mr. Birther in the video way above about Making Swiss Cheese of Vattel.

    On the dicta stuff, I have talked Fabia into reading the Internet Article I linked above after we get through moving some stuff this weekend. Plus, I am reading it too. So far, I am working on an “elements” approach to it. But I had to stop to write about Donofrio throwing in the towel.

    Squeeky Fromm
    Girl Reporter


  666. The dicta/non-dicta stuff is of no importance.


  667. It would appear true that the Ankeny Court did correctly point out that the Minor Court did indeed leave open the issue of children of alien parents being natural born citizens. Since their language was specific to children of alien parents being citizens, I guess we could say they left out a lot of things.
    They left out gun rights. They left out anything to do with excessive bail. They seemed to leave a whole bunch of thing open as a result of not discussing them. They also left out anything that says “citizens are synonymous with “natural born citizens”.

    I looked at a pdf of Akeney, squeeky. Why do they reference Article 2, section 1, clause 4?


  668. Komfort:

    I do not have a copy of the Ankeny Complaint, but I bet it has something to do with the suit being about the Electors for Indiana. Probably, the Vattle Birthers incorrectly or typo-ly cited the qualifications clause when talking about the Electors Clause, and the Court corrected it.

    Remember, there was more than one issue in the suit.

    Squeeky Fromm
    Girl Reporter


  669. Squeeky

    You said:

    In that I note again that the Ankeny court said about Minor v. Happersett:

    Id. at 167-168. Thus, the [Minor] Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.12

    I have mentioned that here on this thread several times, and none of Leo’s Defenders have addressed that. Note that the Ankeny Court did NOT say the language was dicta, they just read it and understood that the Minor Court left the issue open.”

    I do not want to start another lap over this, but did you read Komfort’s logic post regarding the infamous minor quote of the open question?

    If the Ankeny Court followed the context within Minor (forget about WKA) the would have found that the doubts were to include G as B not G as A.


  670. You don’t have a copy of your Holy Grail? That does seem odd.


  671. …of course unless they didn’t forget about WKA when citing Minor preestablishing that B, C, D meant the same thing.


  672. That is exceptional mrjr101.


  673. Komfort:

    Was the Holy Grail comment to me??? If so, what are you talking about???

    Squeeky Fromm
    Girl Reporter


  674. I ment no ill by using “Holy Grail”, squeeky. It was probably the wrong choice of words. I apologize.

    You have been so consistent with Ankeny I was taken back that you would not have a copy.

    On reread I do see that you said you don’t have the “complaint”. Article 2, section 1, clause 4 is mentioned in the opinion.


  675. I think there are valid points about dicta within Minor, such as the court not touching on the class with doubts and not saying why there are doubts. However, Justice Gray cites Minor on this very issue to develop his argument about the class with doubts, making a whole lot of “dicta soup”.

    But as to the natives/NBC class within Minor, including the definition and undoubted inclusion as Citizens pre-14th ammendment, dicta is not so clear cut.


  676. Since Leo has disappeared from this thread, I searched his blog to see what he would have said about Akeny:

    June 21, 2011

    http://naturalborncitizen.wordpress.com/2011/06/21/us-supreme-court-precedent-states-that-obama-is-not-eligible-to-be-president/

    ANKENY V. GOVERNOR OF THE STATE OF INDIANA

    The Minor case has been severely misconstrued in the Ankeny opinion issued by the Indiana Court of Appeals. That court quoted Minor’s natural-born citizen language, then stated:

    “Thus, the Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.”

    False. The Minor Court did not leave that question open. Nowhere in the Minor opinion does it state that the class of persons who are natural-born citizens is an open question. The Ankeny Court has it backwards.

    The Supreme Court in Minor stated that the “citizenship” of persons who were not natural born citizens was an open question.

    That is the most important sentence I’ve ever written at this blog. So please read it again.

    The “citizenship” of those born to non-citizen parents was a question that the Minor Court avoided. But they avoided that question by directly construing Article 2 Section 1. In doing so, the Supreme Court in Minor defined the class of persons who were born in the US to citizen parents as “natural-born citizens”.

    Since Minor, no Amendment has been adopted which changes that definition, and no other Supreme Court case has directly construed Article 2 Section 1.

    The Supreme Court in Wong Kim Ark only construed the question of who was a “citizen” under the 14th Amendment, it did not construe Article 2 Section 1. Therefore, Minor and Wong Kim Ark do not compete with each other at all. Minor is the standing precedent for construction of the natural-born citizen clause in Article 2 Section 1, and Wong Kim Ark is the standing precedent as to “citizenship” under the 14th Amendment.


  677. Komfort:

    I have been trying to find a copy of the Ankeny Complaint, and the Plaintiff’s Briefs. (The “Plaintiffs” are the Vattle Birthers.) Footnote 9 may be a typo by the Court, too. Who knows? But that is a minor point, and I want the Briefs to see how the Plaintiffs filed the thing.

    Squeeky Fromm
    Girl Reporter


  678. Jazz,

    The issue with this is that when you disagree with an opinion of a case, be ready to deflect the arrows that are coming your way regardless of the validity of the courts opinion.

    But we all know that this is not a mere disagreement. Everyone here knows that Ankeny court misconstrued Minor big time because the open question is clear as day.


  679. Footnote 9 is a disaster. I agree it is some sort of typo, but when the court is correcting the plaintiffs, you would think they would check a little better.

    Jazz, good luck.


  680. I think it was Komfort who mentioned that the concern as to whether the MvH’s court opinion of NbC is dicta is moot.

    Is that the consensus of posters on Nal’s blog article?

    I for one am curious as to what lawyers and laymen think of the dicta question, especially with regard to Squeeky’s “Defining Dicta” reference.

    Most are jumping to whether WKA is definitive as to re-scoping NbC without consideration if it were “scoped” in the first place with MvH.


  681. Portney, would you please rephrase your 1st sentence. It does not read quite right, but I think I am hip to what you are saying.

    Thanks.


  682. Wow Footnote 9. I hadn’t notice. And Footnote 12…you can catch the Court’s train of thought, it has an invisible big “Soo” in red over it.


  683. mrjr101:

    “You said: But we all know that this is not a mere disagreement. Everyone here knows that Ankeny court misconstrued Minor big time because the open question is clear as day.”

    That is precisely why I wrote that Alternate Reality Universe Internet Article. If Minor was as “clear as day” that it took two citizen parents to be a natural born citizen, how come the whole rest of the universe missed it???

    http://birtherthinktank.wordpress.com/2011/11/12/the-alternate-reality-universe-of-leo-donofrio-a-white-paper/

    This is kind of how you check your interpretation of stuff. If the rest of the civilized universe reads it a whole another way, then you are probably wrong. At the very least, it isn’t “clear as day.”

    Squeeky Fromm
    Girl Reporter


  684. I would like to point out that the Michael Abramowicz and Maxwell Stearns paper was listed in the reference section of the original post.


  685. Ankeny erred and contradicted itself. It says in one spot that Minor leaves open a question about the children of aliens and elsewhere it says that Minor contemplated scenarios where both parents are aliens. You can’ t leave open a question that was contemplated. And it’s simply wrong anyway. Minor said “These are the natives, or the natural-born citizens, as distinguished from aliens or foreigners.” This is an either/or proposition. Some authorities go farther in defining citizens, Minor says, but with doubts. That’s where the distinction comes in. If you don’t meet the definition of natural born citizen, then your natural condition is that of an alien or foreigner. Any claim to citizenship is dependent on interpretations of statutes or Constitutional clauses, etc. Thus, natural-born means “without doubt.” Obama’s citizenship must be construed per satisfying 14th amendment or statutory citizenship clauses and is therefore “with doubt,” thus he cannot be a natural-born citizen. Even under a common-law interpreation, he is a British subject, not a U.S. citizen.


  686. Squeeky,

    You said: “That is precisely why I wrote that Alternate Reality Universe Internet Article. If Minor was as “clear as day” that it took two citizen parents to be a natural born citizen, how come the whole rest of the universe missed it???”

    that’s not what I said Squeeky. I said what was clear as day is the “Open Question”, that is to include as citizens those in the class with doubts.


  687. WKA IMHO is a poor argument for defining NbC and should be left alone. The only ones that hold that it defines A2 are the commenters on this blog, the court never stated that their interpretation of 14th “born” was even remotely referential to A2…not even implied. This association is a later affectation by those beholden to selling a weak inference to those even less aware of the law than myself.

    MvH, on the other hand, was explicit in its reference and understanding.

    If “perhaps” supersedes “doubtless”, well, I will never figure it out.


  688. Nal:

    Sorry, I didn’t read that. That is where the “tags” are in a lot of posts so I just sort of skipped over it.

    Mea culpa.

    Squeeky Fromm
    Girl Reporter


  689. Squeeky,

    Dont you think I deserve an apology as well for misconstruing what I said? ;)


  690. Nal, sorry I didn’t give credit where it was due. No slight meant. Did you have any reason to believe your article would be a bug lamp for those unhinged regarding NbC? Lord knows I’m a little off.


  691. Portney:

    You said: the WKA court never stated that their interpretation of 14th “born” was even remotely referential to A2…not even implied.

    OH, I guess Wong Kim Ark was the Green Party Presidential Candidate. Have you ever actually read theWHOLE case???

    The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens. . .

    Squeeky Fromm
    Girl Reporter


  692. @Portney. WKA cites and affirms Minor’s definition of NBC. If you read it closely, it very clearly says that persons who are citizens under the 14th cannot be natural-born citizens.

    “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.” And he proceeded to resort to the common law as an aid in the construction of this provision.”

    The “provision” is the birth clause of the 14th amendment. The 14th amendment = “The Constitution.” IOW, when Waite construed the birth clause of the 14th amendment, he said the 14th amendment does NOT say who shall be natural-born citizens. Resort must be had elsewhere. This means that the definition of NBC is found OUTSIDE of the 14th amendment and completely outside of the Constitution or U.S. law.

    Gray says Waite proceeded to resort to the common law as an aid in the construction of “this provision.” Again, the “provision” is the birth clause of the 14th amendment. This does NOT say Gray used the common law to define NBC, only to define the birth provision of the 14th amendment, HOWEVER, this isn’t even true. I’ve challenged Obots on this point. Find any citation in the Minor decision that references common law. In WKA, Gray cites Blackstone and Calvin’s Case and Lord Coke, etc., but Minor cites none of this. The definition of NBC, which Waite says is “At common-law” is in fact a match of Vattel’s definition of NBC from Law of Nations. It is nearly verbatim to the point Waite could be sued for plagiarism, as well as Gray who cites and affirms the same definition in WKA.

    Gray goes on to cite the holding of the Minor decision:

    “Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, …”

    Obot brains explode on this because they can’t explain why Gray said anything about a woman “born of citizen parents” without admitting he was affirming Minor’s definition of NBC. If the common-law or 14th amendment applied, there’s no reason for Gray to acknolwedge the parents citizenship, but he did because the Minor decision was UNANIMOUS and Gray could not deny the NBC definition in sound law or good conscience.


  693. squinty, what you quote doesn’t say ANYTHING about A2. Second, it says “citizenship by birth” NOT natural-born citizenship. It says this is affirmed by the 14th amendment while elsewhere in the decision, it says the 14th amendment does NOT say who shall be NBCs. These are different terms with different sources that define the terms. Reading is fundamental. You, OTOH, may only be mental.


  694. ksdb,

    Justice Waite never construed the 14th A. This is an erroneus assertion. He explicitely said a couple of times in his opinion he did not need to.


  695. Donofrio is going to address other Bar admitted attorneys. He won’t be addressing paid shills and others with no real accreditation – OR Ethical requirement to honestly portray the law, whose mission in life is to obfuscate the law and lie about it… i.e. Squeaky Fromm.

    That means, if you don’t have a law license Squeaky et al, you don’t exist enough to him to even recognize. That’s what I got out of his post. More power to him. Only other lawyers and legitimate students of the Law can really have a true discourse. The rest are fluff who THINK they know more than they really do. I am betting it was rather liberating.

    in fact, given how poor Jonathan’s blog has been hijacked by so many after-birthers and other insulting little minded fools… I will follow Leo’s lead.

    To simplify this for ya Squeeky, you are too stupid to pay any more attention to. Have a great evening, an peace be with you.


  696. REPOSTED:

    Per “Defining Dicta”;

    “A holding consists of those propositions along the chosen decisional path
    or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta.”

    And;

    “[A] presumptive definition of holding (and thus by negative implication, of dicta), counting all “supportive propositions” as part of the holding. A supportive proposition is one that is necessary or sufficient for the case disposition or for the disposition of another proposition that itself expresses a holding. Thus, if proposition A is sufficient for proposition B, and proposition B is necessary for the case disposition, then proposition A would count presumptively as a holding.”

    Did the MvH court put the A2 as a necessary proposition for dismissing the political voting rights demanded by Virginia Minor under the 14th?

    “The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen…”

    “But, in our opinion, it did not need this amendment to give them that position.”

    With that, I think the opinion of the court of how she enjoys her citizenship and expectation of inherent rights is elevated above mere dicta.


  697. “The “provision” is the birth clause of the 14th amendment. The 14th amendment = “The Constitution.” IOW, when Waite construed the birth clause of the 14th amendment, he said the 14th amendment does NOT say who shall be natural-born citizens. Resort must be had elsewhere. This means that the definition of NBC is found OUTSIDE of the 14th amendment and completely outside of the Constitution or U.S. law.”

    ksdb, I agree and consider the court’s opinion “as clear as an unmuddied lake of deepest summer” in comparison to that of WKA. Gray’s court admittedly did its level best to justify jus soli birthright for aliens of a particular nature, but in no way encroached on Waite’s holding.

    For those that believe WKA is a NbC definition, I would appreciate a citation by Gray stating such was his purpose. So far, I am unconvinced it was intent to even remotely imply such.


  698. Justice Gray has ample opportunity during the summation of the opinion to clearly reference A2 as pertinent and instead remained solely in the scope of the 14th;

    “The fact, therefore, that acts of congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the constitution: ‘All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’”

    (snip)

    “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 parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile 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.”


  699. WKA and MvH;

    “In construing any act of legislation, whether a statute enacted by the legislature, or a constitution established by the people as the supreme law of the land, regard is to be had, not only to all parts of the act itself, and of any former act of the same lawmaking power, of which the act in question is an amendment, but also to the condition and to the history of the law as previously existing, and in the light of which the new act must be read and interpreted.

    The constitution of the United States, as originally adopted, uses the words ‘citizen of the United States’ and ‘natural-born citizen of the United States.’ By the original constitution, every representative in congress is required to have been ‘seven years a citizen of the United States,’ and every senator to have been ‘nine years a citizen of the United States’; and ‘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.’ Article 2, § 1. The fourteenth article of amendment, besides declaring 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,’ also declares that ‘no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ And the fifteenth article of amendment declares that ‘the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude.’

    The constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that ‘all persons born r naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’ Amend. art. 14. 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, 5 Sup. Ct. 935; Boyd v. U. S., 116 U. S. 616, 624, 625, 6 Sup. Ct. 524; Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564. The language of the constitution, as has been well said, could not be understood without reference to the common law. 1 Kent, Comm. 336; Bradley, J., in Moore v. U. S., 91 U. S. 270, 274.

    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.’ And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.”

    It’s important to note that in the last paragraph that MvH was not reflecting on the 14th in any capacity but rather solely on A2. I think that is cause for the confusion that has arisen. Justice Gray also looked to the common law but specifically in reference to the 14th.


  700. “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.’ And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.”

    Actually, as I reread the WKA citation it is notable that justice Gray may be in error as to what Waite stipulated.

    “And he proceeded to resort to the common law as an aid in the construction of this provision.”

    The sentence appears to state that MvH passed judgement as to the meaning of the 14th, which was provably not the case. I wonder of which provision he speaks of?

    Need a lawyer! 911! Help!


  701. Portney,

    You don’t need a lawyer,

    Justice Waite never, not probably, never construed the 14th A. So, yes, Gray was in error in that statement.
    .


  702. WKA NbC: A child born in the United States, of parents of foreign descent, who, at the time of their birth, are subjects of said foreign power, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the allegiance of that foreign power, becomes at the time of his birth a citizen of the United States.

    MvH NbC: 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.

    Who honestly believes the framers of A2 considered the premise of WKA the driving consideration for natural born citizenship?


  703. Danae:

    You said: I will follow Leo’s lead.

    Oh, I just bet you will! You are sooo lucky! You will never have to think for yourself ever again. Just be careful if he buys you a new pair of sneakers and tells you about the Mother Ship. :;

    Squeeky Fromm
    Girl Reporter


  704. @mrjr101, No, Waite DID construe the citizen provision of the 14th amendment, because the argument put forth by Minor was based on being a citizen per this provision.
    “The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship, which the State cannot by its laws or constitution abridge.”

    Waite rejected the argument because Minor was an NBC. It’s why he went outside the Constitution to define NBC.

    “… in our opinion, it did not need this amendment to give them that position.”

    “The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her. ”

    It should have been simple to accept Minor’s argument if the court thought jus soli was all that was needed to be a citizen, but in order to reject the suffrage argument as a privilege and immunitiy created along with citizenship in the 14th amendment, Waite had to show that women, as a class, had always been citizens, which is true, by virtue of the natural law of natural-born citizenship. The privileges and immunities that went along with citizenship since the founding of the country did not include a right to vote for women, nor was such a right created by the 14th amendment.All the 14th amendment did was create a new type of birth citizenship for persons weren’t inherently recognized as citizens,as long as they were subject to the jurisdiction, which Gray satisfied with a domicil requirement.


  705. @portney: You wrote: “WKA NbC: A child born in the United States, of parents of foreign descent, who, at the time of their birth, are subjects of said foreign power, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the allegiance of that foreign power, becomes at the time of his birth a citizen of the United States.”

    That’s not NbC. Gray only referred to NBC from A2 and from Minor, the latter being the last time he referenced the term at all in his decision. From the Minor definition forward, Gray uses a different term, “citizenship by birth” which is based on what he calls a fundamental rule, but this term is exclusively defined by the 14th amendment, at least up until the immigration and nationality acts of the 20th century.

    Here are some of references to CBB, not NbC in WKA:

    “the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory”

    “with our own established rule of citizenship by birth in this country”

    “citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution”

    “The effect of the enactments conferring citizenship on foreign-born children of American parents has been defined, and the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well considered opinions of the executive departments of the Government since the adoption of the Fourteenth Amendment of the Constitution.”

    “The effect of the enactments conferring citizenship on foreign-born children of American parents has been defined, and the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well considered opinions of the executive departments of the Government since the adoption of the Fourteenth Amendment of the Constitution.”

    Notice how nearly every reference is tied to the 14th amendment. Not one time did Gray use the term NBC in place of CBB. NBC is defined outside the Constitution, and CBB is defined BY the Constitution. Two separate, discreet, distinct and differently defined terms.


  706. ksdb, thanks for the clarification of what Gray was stating in reference to MvH. What you stated make sense to this laymen. Of course you could probably cluck like a chicken and occasionally throw in “ratio decidendi” and I’d nod knowingly.