Cort Wrotnowski alleged that Obama’s father’s British citizenship made Obama’s birth citizenship different from “natural born” citizenship as the Constitution says the president must be.
There was no comment on the case from the Court, just a note that the appeal was not taken.
Tinfoil hat concessionaires on Capitol Hill were disappointed.
In other news, electors are meeting today to elect Obama president.
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(The Life of Reason, vol. 1: Reason in Common Sense)
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One parent as a non-citizen only affects status if the child is NOT born on U.S. soil AND, the parent is either a citizen of a nation at war with the U.S. OR the parent is a consular official (representing his or her nation in official diplomatic status). Obama was born on U.S. soil, with a U.S. citizen parent (which may nullify any questions about his father’s status anyway); his father was a citizen of the British Commonwealth, which was not at war with the U.S. at the time (nor has it been since 1815), nor did his father represent any nation other than the U.S. in an official diplomatic status at the time of Obama’s birth.
Obama was not subject to a foreign jurisdiction. Gray is vague on the issue of “natural born,” but in no case does it distinguish that phrase from “citizen.” There is nothing in the case to say a kid born on U.S. soil is not a natural born citizen.
It’s a squishy case at best on its face, and I can see summary judgment, even if anyone ever got standing.
But I also think that the precedent is rather clear that Congress rules on this issue, not the Supreme Court. So you’re still stuck in the wrong venue, trying to make an extremely difficult case.
I plan to enjoy the inauguration, myself.
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Ed – No one is disputing that he is a citizen given the set of facts presented. Neither Ark nor Happersett determines whether or not a child is a Natural Born citizen where one parent is a NON-citizen and subject to a foreign jurisdiction which also confers citizenship to the child. If they did there would be no question at all that Obama was for the purposes of Article 2 Section 1 a NBC. Gray ONLY determines that he is a citizen but leaves completely silent the question of whether or not he is a NATURAL BORN citizen. The same as in Happersett. NBC is not determined only citizenship.
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Absolutely. However, Britain will not claim that U.S. law on citizenship will affect their internal law on the citizenship of that same person . In other words, Britain will say their law is supreme in Britain, and must be followed. You’re asking that we defer to a British law that does not defer to our law. That makes no sense, and it’s contrary to usual construction of decisions where laws are in conflict. And, as you noted, we fought a couple of wars so that British law would not supercede U.S. law inside the U.S. Why surrender to the British now?
Such a decision cannot be made for a kid, under U.S. law. So the operative issue is, what did Obama decide? He decided on U.S. citizenship.
However, for the purposes of eligibility for the presidency, I don’t see that it would make any difference. The Constitution does not require that a natural born citizen always be a U.S. citizen. Had Obama taken British citizenship, and then renaturalized as a U.S. citizen, he’d still qualify under the Constitution, since he was born a citizen. Of course, that’s not even an issue here, since Obama has always maintained his U.S. citizenship.
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Obama was born to a citizen parent, on U.S. soil. Under Hapersett, he’s a natural born citizen, under the plain meaning of the law at that time. There are several citizenship laws in between, none of which would disqualify Obama.
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To address your first point about the laws of another nation governing U.S. citizenship. The same logic could be used to justify the British position. In other words, Britain says why should the US determine British citizenship? If he was born to a British subject the child is a subject as well. Whether the person chooses to accept dual citizenship at the age of majority or if it is renounced by a parent under certain circumstances pursuant to the Hauge Convention, the fact remains, both the US through the mother and Britain conferred citizenship on Obama at the time of his birth therefore, and therefore he was not subject to the absolute and complete jurisdiction of the United States at birth.
With respect to your comment “The second flaw is in assuming that Obama was under the jurisdiction of the British law despite his never having agreed to it in any way, nullifying the citizenship of his mother. ” One need not specifically consent to jurisdiction to none the less be subject to it. Not until the age of majority do you have the right to either repudiate or choose citizenship, but you are none the less subject to it until such time as you renounce and/or replace. The point being his mother’s citizenship is not nullified; he still is entitled to the rights of a US Citizen (assuming he was born on US soil. At the same time however, he was conferred with the rights of British citizenship by virtue of paternity. Consider the argument conversely “assuming that Obama was under the jurisdiction of the American law despite having agreed to it in any way nullifying the citizenship of his father.” Neither the mother’s nor the father’s citizenship was nullified, however because of competing jurisdictions, he cannot be considered to be natural born.
In Wong Kim Ark, the court thoroughly discussed “natural born citizen”. And in doing so, Justice Gray quoted directly from the holding in a prior Supreme Court case, Minor v. Happersett. The following passage is a quote from Minor as quoted by Justice Gray in Wong Kim Ark:
“ ‘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.”
In Minor, they clearly established who was a “natural born citizen” beyond any doubt, a definition that does not include Obama. As to persons born in the US to foreign parents they said, as directly quoted in Wong Kim Ark by Justice Gray, “As to this class there have been doubts, but never as to the first.”
For the purposes of Minor and Wong Kim Ark, the Supreme Court didn’t need to reach the “natural born citizen” issue as neither person was running for President, so they rightfully punted by limiting their holdings to the issue of whether each person was a “citizen”.
But they discussed the “natural born citizen” issue thoroughly. Justice Gray in Wong Kim Ark quoted this EXACT passage from Minor. And in doing so, Justice Gray and the court punted on whether Wong Kim Ark was a “natural born citizen” specifically limiting their holding to state that the person was a “citizen”.
There’s a clear distinction being made by both the Minor court and the Wong Kim Ark court between “natural born citizens” and “citizens”. And both holdings were willing to say that the person was a “Citizen” but no more than that. They carefully evaded the issue of whether a person born in the US to parents who weren’t citizens was a “natural born citizen”.
Justice Gray covered all of this ground in Wong Kim Ark thoroughly, but at the end of the decision he refused to state that a person born in the US to foreign parents was a “natural born citizen”. In Wong Kim Ark, the court’s holding avoided the natural born citizen issue by steering widely clear of it in the conclusion. Won Kim Ark wasn’t running for President, so they punted as follows:
“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. ”
In sum Wong Kim Ark did not address natural born citizenship for the purposes of presidential qualifications Article 2, Section 1, Clause 5 and therefore the NBC clause cannot be said to have been definitively settled case law based on Ark. I would respectfully disagree that subscribing to this belief would make one a tin foil hat wearer. If I were to say that Bush and Clinton know about the NBC issue and will not allow Obama to take office, instead Bush will declare marshal law, arrest Obama and Biden and allow Hillary to take office, I would say you have grounds to accuse me of tin foil hat logic. I would respectfully submit that my position (quite similar to Donofrio’s) has been laid out in a non-conspiratorial way, paying detailed attention to historical and legal contexts of this issue.
Finally, I will concede that the standing and justiciability issues are extremely problematic however it begs the question, if not than who? If the issue is punted because of a technicality that the Constitution provides no enforcement mechanism for this insomuch as it doesn’t confer standing on any particular individual or body, I’d say the technicality of natural born citizen vs. citizen is no less salient. I would point out that the 2nd Amendment had never been conclusively decided on the “technicality” of whether it was an individual right or collective right until District of Columbia v. Heller this year. I would also note that in the majority decision, Scalia discussed “The Law of Nations,” a treatise written by Swiss lawyer and diplomat Emerich de Vattel as a manual for how government should function. This work was read not only by the Founding Fathers, but was also well-known throughout the colonies among the populace and many aspects of our Constitution were based upon the encyclopedic treatise, including its reference to citizenship which does define natural born citizenship.
“The common references to those “fit to bear arms” in congressional discussions about the militia are matched by use of the same phrase in the few nonmilitary federal contexts where the concept would be relevant… Other legal sources frequently used “bear arms” in nonmilitary contexts.”
Now look at “footnote 10″:
E. de Vattel, The Law of Nations, or, Principles of the Law of Nature 144 (1792) (“Since custom has allowed persons of rank and gentlemen of the army to bear arms in time of peace, strict care should be taken that none but these should be allowed to wear swords”);
I suppose that to get around standing and actual injury one could simply wait until after Obama takes office and challenge legislation as unconstitutional based on an assertion that he had no standing to sign the bill into law as he is not qualified to be POTUS based on the NBC clause. In that way one would have standing to show injury being subject to a law that does not have the force of law.
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So, if I understand what you’re saying, you think that Obama was subject to the jurisdiction of England because his father was technically a citizen of the Commonwealth.
I still see the same two flaws in that argument. The most important is that it lets the law of another nation govern U.S. citizenship, which is contrary to Article VI of the Constitution. In short, you’re saying British law is the supreme law of the U.S. in this case. Not to put too sharp a point on it, but we fought two wars to nullify that idea, and while the second war was not so decisive as the first, we didn’t cede that jurisdiction to Britain, nor did we cede Article VI.
The second flaw is in assuming that Obama was under the jurisdiction of the British law despite his never having agreed to it in any way, nullifying the citizenship of his mother. I think there’s no way to analyze that argument to make anything but a non-starter, on jurisdictional grounds, on equality of law grounds, on 14th amendment grounds, and no injury to establish standing for someone like a voting citizen to sue. If one applies the rules the British applied as mentioned in Wong Kim Ark, one comes to the conclusion that Obama must be considered a natural born citizen of the United States, since Obama was born on U.S. soil. The exceptions don’t nullify that — his father was not a diplomat nor consular official, and Hawaii was not occupied territory nor was England at war with the U.S. This case works against Obama ONLY if one concludes that British law still stands in the U.S., that the Constitution is null and void, or that the U.S. is part of the British Commonwealth. I don’t think anyone thinks any of those points obtain.
I’d also like to note the delightful air of justice in Wong Kim Ark. The Chinese Exclusion Acts were reprehensible, brutally and stupidly racist laws that did irreparable harm to the U.S. Justice Gray’s brave holding to the letter of the law against the racist intent of the Exclusion Acts was a brief moment of sanity in that time, and that he got the Court to go along makes me happy. The attack on Gray’s motives is ugly.
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@ Ed – I think that what it must come down to is the “natural born citizen” clause and how its defined by later Amendments and case law. Specifically, the 14th Amendment, and while you mentioned in a previous post that there was intent to exclude some American Indians, the intent may be morally questionable, but the letter of the law and the intent must be treated deferentially. If you are to argue about the morality or ethics of the law that is one thing but what the law actually is cannot be disregarded. In other words, if it is deemed morally wrong to exclude cadidates by virtue of birth, the Constitution should be amended through the Amendment or Convention as prescribed. But in terms of what the law means, it must be interpreted as close to the original language and intent as possible. To that end, I must take issue with your assertions that there is no historical context on which to base disqualification of natural born status by virtue of dual citizenship on.
The Citizenship Clause of the Fourteenth Amendment provides 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.” As manifest by the conjunctive “and,” the clause mandates citizenship to those who meet both of the constitutional prerequisites: (1) birth (or naturalization) in the United States and (2) being subject to the jurisdiction of the United States.
The “subject to the jurisdiction” provision must therefore require something in addition to mere birth on U.S. soil. The language of the 1866 Civil Rights Act, from which the Citizenship Clause of the Fourteenth Amendment was derived, provides the key to its meaning. The 1866 Act provides: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” As this formulation makes clear, any child born on U.S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child’s parents, remained a citizen or subject of the parents’ home country was not entitled to claim the birth right citizenship provided by the 1866 Act.
It is clear the framers of the Fourteenth Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil. Again, we are fortunate enough to have on the record the highest authority tell us, Sen. Lyman Trumbull, Chairman of the Judiciary Committee… and the one who inserted the phrase:
[T]he provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ’subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.
Sen. Howard concurs with Trumbull’s construction:
Mr. HOWARD: I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
Sen. Johnson, speaking on the Senate floor, offers his comments and understanding of the proposed new amendment to the constitution:
[Now], all this amendment [citizenship clause] provides is, that all persons born in the United States and not subject to some foreign Power-for that, no doubt, is the meaning of the committee who have brought the matter before us–shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born to parents who at the time were subject to the authority of the United States.
No doubt in the Senate as to what the citizenship clause means as further evidenced by Sen. W. Williams:
In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States…All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, ’subject to the jurisdiction of the United States,’ to mean fully and completely subject to the jurisdiction of the United States.
Rep. John Bingham of Ohio, considered the father of the Fourteenth Amendment, confirms the understanding and construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:
[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…
If this law was simply to reaffirm the common law doctrine then the condition of the parents would be totally irrelevant. It’s also important to note this statement was issued by Bingham only months before the 14th Amendment was proposed.
In 1873 the United States Attorney General ruled the word “jurisdiction” under the Fourteenth Amendment to mean: The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment… Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.
An 1874 Congressional Report stated the “United States have not recognized a double allegiance.” This report had been signed by William Lawrence and James F. Wilson, two significant original Fourteenth Amendment participants. There is no way in the world anyone can claim “subject to the jurisdiction thereof” affirms the feudal common law doctrine of birth citizenship to aliens because such doctrine by operation creates a “double allegiance” between nations. This makes it impossible to argue the words “subject to the jurisdiction thereof” was merely to reassert the common law doctrine of demanding unconditional allegiance through birth. The common law doctrine by operation creates double allegiances by making children of other nation’s citizens born locally forever subjects of the crown whether they consent or not.
The court in Elk v. Wilkins (1884) determined that “subject to the jurisdiction” of the United States required “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.” Both Jacob Howard and Lyman Trumbull affirm this.
Both the majority and the dissenting justices agreed with Howard and Trumbull’s representations of the 14th Amendment. The majority in that case correctly noted that the “main purpose” of the clause “was to establish the citizenship of the negro” and that “[t]he 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.” Justice Steven Field, joined by Chief Justice Chase and Justices Swayne and Bradley in dissent from the principal holding of the case, likewise acknowledged that the clause was designed to remove any doubts about the constitutionality of the 1866 Civil Rights Act, which provided that all persons born in the United States were as a result citizens both of the United States and of the state in which they resided, provided they were not at the time subjects of any foreign power.
Despite the clear holding of Elk and the extensive dicta from “Slaughter-House” cases that mere birth on U.S. soil is not sufficient to meet the constitutional prerequisites for birthright citizenship, the Supreme Court held otherwise in United States v. Wong Kim Ark, with expansive language even more broad than the holding of the case itself. It is that erroneous interpretation of the Citizenship Clause, adopted 30 years after the adoption of the Fourteenth Amendment, that has colored basic questions of citizenship ever since.
In 1898 Wong Kim Ark case, Justice Horace Gray, writing for the Court, held that “a child born in the United States, of parents of Chinese descent, who at the time of his birth were subjects of the emperor of China, but have a permanent domicile and residence in the United States,” was, merely by virtue of his birth in the United States, a citizen of the United States as a result of the Citizenship Clause of the Fourteenth Amendment. Justice Gray correctly noted that the language to the contrary in The Slaughter-House Cases was merely dicta and therefore not binding precedent. He found the Slaughter-House dicta unpersuasive because of a subsequent decision, in which the author of the majority opinion in Slaughter-House had concurred, holding that foreign consuls (unlike ambassadors) were “subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside.”
Wong Kim Ark flew in the face of previously decided Supreme Court decisions as well as the unmistakably clear legislative intent of the Constitution, 14th Amendment, and Naturalization act of 1790 instead curiously cited English Common Law which had been repudiated by the Founding Fathers (see also War of 1812). The most significant truth to come out of the entire Wong Kim Ark ruling however, comes from Chief Justice Fuller himself, when he said, “the words ‘subject to the jurisdiction thereof,’ in the amendment, were used as synonymous with the words ‘and not subject to any foreign power.’” He was absolutely correct.
Colored by the recent discovery that President Chester Arthur who had appointed Gray, did not satisfy the natural born citizen requirement by the Constitution or definition within the construct of the 14th Amendment of whom he was a contemporary, a pall is cast upon Gray’s decidedly bizarre reversal from earlier precedent which he authored and dependence upon discredited theories of common law and foreign feudal law, his objectivity and motivation in Ark are certainly questionable.
The Supreme Court reiterated in their decision of S.C. v. U.S. in 26 US Supreme Court 110, 111 (1905) that: “The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when adopted, it means now.”
Although the Supreme Court has never explicitly defined the “Natural Born Citizen” Clause, only instructed in its application, a thorough understanding of the historical context and legislative intent of the Constitutional Clause and 14th Amendment are critical. While hardly an originalist, Justice John Paul Stevens recognizes the import role of legislative history and intent, even in the form of dicta. “My own view about original intent is that it’s just as relevant in constitutional cases as legislative history” in other cases. “A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge’s refusal to consider legislative intent,” Stevens said.
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You should take some satisfaction in knowing that your younger sister is not disqualified from the office. Does she intend to run?
Much of life is spent overcoming the lies our teachers told us, to borrow a phrase. It’s no pity that we don’t study the errors of the past. “Used to be taught in public schools” is not a legal precedent. We used to “know” that African Americans are not citizens, too. We used to know separate but equal was okay.
I’m not relying solely on Donofrio’s explanations. There are other laws he ignores, other legal principles he doesn’t discuss (which is one of the reasons his briefs aren’t getting the hearing he thinks he deserves in the courts, I suspect — he’s not dealing with all the laws that apply; an incomplete case is considered unripe).
Progress isn’t always bad.
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Thanks for your time, Ed. It has been instructive. You were doing pretty good right up until the end. I had no right to expect you to actually read Donofrio’s blog post, and assumed you were relying on other sources for your sketchy knowledge of the thrust of his case. I was willing to discount your unfair characterization of him as a nutcase as merely partisan passion, until you demonstrated that you apparently see no distinction between citizenship by right of birth and natural born citizenship.
Interestingly, I can still recall learning of that distinction during a junior high school American history class; because we discussed how it rendered my younger sister, who was born in Munich during our occupation of Germany in 1947, ineligible to ever be President. Her situation was precisely that of John McCain, so Donofrio’s argument against his eligibility was hardly novel or a stretch; it used to be taught in public school. I reckon it is a pity that modern generations of American children do not study our basic founding documents to the extent that we once did.
Please be patient. It won’t be long now before we old timers, cursed with inconvenient memories of what this nation once was, die off and leave such matters in the hands of legal experts, who regard our Constitution not as a binding contract, but as a malleable “living document.” ◄Dave►
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Were there merit to Donofrio’s case, the Court probably would have taken it. Their failure to even regard the case should be regarded as their not seeing an important issue there to decide right now — and that could be because of ripeness, or more likely, it’s because of standing. If they regarded it as an issue of some import, they could take it despite the standing issue. But in no case should their dismissal of the request for cert be taken as confirmation that Donofrio or any of these other cases has a ghost of a chance. When the Supreme Court lets stand a lower court’s dismissal on standing, that’s not a good omen for the side that got dismissed. So, the failure to grant cert should be regarded the opposite of how you ask us to see it. The Court did us all a grand favor by failing to give any credence to a crackpot case, would be a much more accurate reading of their action. That’s how the Court has worked since 1789, and that policy has not changed under Chief Justice Roberts. Were there merit to Donofrio’s case, the Court would have granted the writ of certiorari.
The Constitution is the supreme law of the land (see Article VI), and it is not subject to change by the whims and misinterpretations of Donofrio, or Wrotnowski, nor any other crank who thinks he or she understands the law better than the Supreme Court, despite a complete lack of any evidence of that superior understanding. The plain reading of the Constitution would be that anyone born on the soil of the U.S. — that is, after 1789 — would be a “natural born” citizen. Donofrio’s odd interpretation that somehow, British law should take precedence and nullify that plain reading is a strained interpretation at best, and wildly crackpot at worst. There is zero precedent for Donofrio’s interpretation.
Obama’s dual citizenship doesn’t change his status as a U.S. citizen. It was an option he chose not to exercise. That he had that option does not alter his U.S. citizenship in any way. Donofrio’s refusal to recognize this part of the law, his willingness to fudge the facts to make his case look better, don’t add to the appeal of his claims in any fashion. As I noted before, the U.S. stands second to no other nation in determining who is a citizen of the U.S. Donofrio’s suggestion that the U.S. should abandon Article VI in order to disqualify Obama is not only not a Constitutional claim, it would make the Constitution worse than what you claim to fear: Merely a suggestive framework readily subject to change by the legislative acts of foreign powers.
Moreover, there is a good case to be made that the Supreme Court is not the arbiter of this issue. The Constitution is also quite plain in its statement that the Congress counts the ballots of the electors. Were Obama not eligible, the Congress could refuse to count the ballots. Congress does not take instruction from the Supreme Court on this issue — and at least half the Congress has already gone on record with a resolution that supports Obama’s full eligibility. Once again, Donofrio’s case appears to lack legs to stand on. In a previous election, Congress simply refused to count the ballots cast for a candidate they had determined to be ineligible (William Randolph Hearst, who had died between the general election and the counting of the electoral ballots). I almost hesitate to mention it, because cranks like Donofrio (who is pictured in his full gimme-hat glory in an earlier post at this blog) are wont to begin a petition campaign to Congress, and Congress has its share of tinfoil hat sympathizers.
So the Constitution stands strong, having withstood the slings and arrows of outrageous poker-player whimsy.
The Court is in no tight situation, not even close to a rock. “If one acknowledges the conundrum” is where you go off the rails. There is no conundrum. Donofrio has no case by any rational reading of the Constitution and the law on citizenship. That Donofrio was three times as crazy in his original petition doesn’t lend sanity to the final challenge to just one candidate: It’s still wacky, still without law to back it, still out of order, still in the wrong branch of government, and still wrong.
The Constitution gives all citizens the right to believe any foolish thing. It does not compel any of us to believe foolish things, however, and it does not require any branch of government to receive foolish ideas as anything other than the foolish ideas they are. It’s not the government that has created this particular cow pie, it’s people like Donofrio who are convinced they have achieved understanding of long-standing law that they simply have not achieved. Can British law strip natural born U.S. citizens of their rights before U.S. law and the Constitution? I don’t think so. So far, the Court has agreed 100%.
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I was not questioning Obama’s allegiance in a personal sense, only in a legal sense at the time of his birth. At that time we considered him a citizen of the U.S.; and the U.K. considered him a subject of the Queen. The term for that not uncommon circumstance is dual citizenship, which Obama himself openly acknowledges was his status until he was 21.
Were there not some merit to Donofrio’s cases(s), the SCOTUS would have done us all a huge favor by granting cert and quickly ruling that Obama is a Natural Born citizen. They would have done themselves a favor too, as it would have stopped cold the at least 13 other cases that are already working their way up to them, to say nothing of all the new ones that will be filed once he actually takes office, and commits official acts that would give potential litigants standing.
As to what is wrong with allowing Obama to take office, even if he is technically ineligible, since he couldn’t be any worse than his predecessor; only this: Either the Constitution is the organic law of the land, modifiable only through the established Amendment process; or it is just a suggestive framework, readily subject to change by executive order, legislative edict, or judicial fiat. I prefer the former.
I do appreciate that the SCOTUS is between a rock and a hard place, because a ruling against Obama would tear this country apart. I sure wouldn’t want to be in their shoes. However, if one acknowledges the conundrum, one has to acknowledge that Donofrio is on to something. I think it is important to acknowledge that his original petition was to remove three candidates from the ballot, including McCain and the Socialist on the same grounds. It is the political parties and the candidates themselves, who have put us in this mess; not the citizens who are challenging their eligibility. ◄Dave►
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Yes, I’ve read his arguments. I don’t find Donofrio’s argument convincing. For legal purposes, we in the U.S. have never distinguished “natural born” from “born on the soil.” Donofrio has a strained argument that there was intended to be a difference, but I don’t think it’s supported by the debates.
Specifically, he alleges that having one foreign citizen parent would automatically disqualify someone from eligibility. That would have disqualified the children of John Quincy Adams, for example — so the son of a president and grandson of a president would not be qualified to be president? That’s silly.
He’s done his homework on looking up arcane and potentially relevant debates. He’s not done his homework in looking at citizenship cases coming before the courts, nor in thinking through the examples. He assumes that British law supercedes U.S. law to make his argument work, and I find that both offensive and unrealilstic — no jurisdiction allows another nation to determine who its own citizens are. We shouldn’t start now.
Most of those cases of military officers refusing to carry out orders are dismissed. Then the officer is either drummed out of the service or sent to the brig. If you can find any case where a soldier’s refusal to follow orders has resulted in a change in order or the relieving of the officer’s command, I’d like to know about it. I’ll wager that if there is such a case, it’s a clear war crimes case. This is not a war crimes case, and it beggers the imagination to think that the Court would allow it to work that way, when we just voted out the party that argued it is okay to commit war crimes.
This is an insignificant case. Even were it true that the letter of the law says Obama is not “natural born,” there is not a shred of doubt as to the allegiance issue now.
Consequently, standing would be nigh on impossible to establish. No injury. Especially, there is no injury for which there would not be other redress available.
I gather that you’ve not argued many of these cases. I’ve always found judges reluctant to take the odd, technical stand, when there is clear precedent the other way (and we have it here with Chester Alan Arthur), and when the solution is so much worse than the problem cited. What’s wrong with having Obama as president? Make your case there. And of course, that’s another place Donofrio can’t make a case. Obama’s work so far has been outstanding. When he goofs, it will be difficult to goof as badly as Bush did. Who wants to take such a case? What self-respecting, flag-waving judge would want to decide such a case against the nation? The Supreme Court got burned badly in Bush v. Gore, and it’s unlikely they want those blisters again.
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Have you read his arguments, Ed? Obama’s citizenship is not the issue. Donofrio specifically and often concedes that he is a citizen. The question is whether he is a “Natural Born” citizen, which at the time the founders used it meant without allegiance to any other jurisdiction. This fundamentally implies that both parents need to be U.S. citizens. Donofrio is not the one ceding jurisdiction to the U.K.; Obama’s own website does (linked in Donofrio’s post). Again, if one reads that post, it would seem that the obvious conclusion is “no” he is not eligible; and it would take some slick legal legerdemain to concoct a plausible “yes.”
He has done his homework, and those inclined to dismiss it out of hand have not. Plain common sense says that there must be some distinction between a “Natural Born Citizen” and just a “Citizen,” or our founders would have not used the term only for POTUS & VPOTUS, and not the Senators, etc. No? What exactly is that distinction?
Since the SCOTUS chose to duck, it will just keep coming back up again and again until they have to rule on it. Indeed, I have read of military officers who will refuse to execute the “illegal” orders of a usurper, and take it to court. Others have vowed to file a suit against every “official” act he makes under the color of law. No President needs this Constitutional issue, which is by no means frivolous, hanging over his head as a distraction; and the SCOTUS is doing him no favors. ◄Dave►
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I don’t think there’s a legal basis behind Donofrio’s claims. Never before has the U.S. held that a person born to a citizen of the U.S. on U.S. soil is not a citizen. I don’t see any reason that Donofrio should expect a different ruling today. That’s been the law since 1776, according to the Constitution.
You’re assuming Donofrio’s arguments are valid. He cedes jurisdiction to Britain — an issue that got us into the War of 1812, incidentally. I don’t think Donofrio’s claim is any better now than it was when we went to war to prove it wrong, then.
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Setting aside your anxiety to be done with the Bush Administration, which I share, in what way do you find Donofrio’s arguments unpersuasive? Replacing one man who deserves to be impeached for what he has done to our Constitution, with another who is by definition Constitutionally ineligible for the position, doesn’t strike me as progress. ◄Dave►
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