|
|
Post by jerseyhoya34 on Aug 4, 2009 15:18:48 GMT -5
The New Yorker cover was satire. It's point was to mock those who believe Obama is a secret Muslim. As with Bruno, the liberals fallback position after hearing this is and realizing their kneejerk reaction of horror was unwarranted was..."well, of course I get it, but do all those hicks in the midwest...I don't want them to think its true." Bull Edited. They just can't think for themselves and don't want to be caught laughing at something not approved. I consider that a fair point but my point had more to do with the feverish circulation that took place. Why all of a sudden does New Yorker end up far and wide on television and elsewhere when the cover was some-sort of purportedly high brow satire? As then-candidate Obama noted, "I do think that, you know, in attempting to satirize something, they probably fueled some misconceptions about me instead. But, you know, that was their editorial judgment." Both campaigns slammed it as tasteless, which I think is an appropriate term for it, satire or not. |
|
Bando
Golden Hoya (over 1000 posts)
I've got some regrets!
Posts: 2,431
|
Post by Bando on Aug 4, 2009 16:19:38 GMT -5
The New Yorker cover was satire. It's point was to mock those who believe Obama is a secret Muslim. As with Bruno, the liberals fallback position after hearing this is and realizing their kneejerk reaction of horror was unwarranted was..."well, of course I get it, but do all those hicks in the midwest...I don't want them to think its true." Bull Edited. They just can't think for themselves and don't want to be caught laughing at something not approved. problem was that Americans were too tolerant (not accepting, but tolerant) of homosexuality for his premise to work, so SBC had to resort to almost ludicrously offensive behavior that played up the worst sterotypes of gays. The problem for SBC, then, was that the hicks in the midwest weren't intolerant enough. |
|
|
|
Post by AustinHoya03 on Aug 4, 2009 21:21:19 GMT -5
Thanks for taking the time to respond to Jersey's assinine half-truths Boz. I am too infuriated/flabbergasted to respond to 98% of the crap that he posts on B&G. I've said this before, but I'll say it again -- I'm 98% convinced The Ambassador is being paid by a liberal 527 group to push its agenda on this board. How's THAT for a conspiracy theory? |
|
|
|
Post by jerseyhoya34 on Aug 4, 2009 21:38:27 GMT -5
Thanks for taking the time to respond to Jersey's assinine half-truths Boz. I am too infuriated/flabbergasted to respond to 98% of the crap that he posts on B&G. I've said this before, but I'll say it again -- I'm 98% convinced The Ambassador is being paid by a liberal 527 group to push its agenda on this board. How's THAT for a conspiracy theory? It is a pretty good one, but it is not reality-based, like many conspiracy theories. I am not long for 527's and have been pretty consistent in my opposition thereto, particularly vis-a-vis campaign finance policy debates.  I welcome healthy debate and believe Boz made some valuable points in his most recent post. I admittedly hit hard on my points and know that it ticks people off. I have heard from more than a few who are as ticked off by points made by the other side and appreciate Vado, Ed, Boz, exorcist all the same. It comes with the territory when you discuss things like the birther coup attempts, the Gates incident, and political campaign rhetoric. Perhaps we could offer brasky a juicebox so he could join the fun. |
|
|
|
Post by HoyaLawya on Aug 5, 2009 4:04:07 GMT -5
I'm not going to quote it, but your response was completely non-responsive to my political question, standing, and rule 11 critiques. The fact that political parties play a role in naming electors and making attestations of qualifications makes the legislature and electors execution of their job no less a political question. If you want to challenge the state secretary of state's determination, you have a generalized grievance that is not justiciable. Which is why there was a group of political donors to both major parties' candidates who were, at one time, looking into a different choice of defendants and a class action lawsuit alleging the "unique harm" of having donated to candidates (a pecuniary investment made in good faith reliance) who had sworn themselves eligible but whose eligibility was later found to be suspect. (It wouldn't have named the SOS, and it would have relied upon diversity jurisdiction and jurisdictional amount to get around the "standing" problem of other lawsuits.) Before they were going to run into NYC to hire reputable and experienced class action counsel at a large firm, they were delving into the preliminaries of researching what the odds of success might be. And they were of the view that both national parties might have put up candidates with eligibility flaws. I thought their odds against McCain were 50-50 (he did himself no favors as research disclosed the series of misrepresentations he had made until Hollander unearthed the definitive document), and I made my contribution to their thinking as far as the reasons why I thought that an 'nbc' suit regarding Obama was the proverbial dog that wouldn't hunt. And it took the strictest possible legal requirement that could be argued, given the caselaw and historical documents tending to reflect what might have been the thinking of the Framers: Namely, that 'natural born' requires birth on U.S. soil and that both parents must be U.S. citizens by the time one is born. Dual citizenship would be found disqualifying under such a strict standard. One might argue that Obama's website had made an "admission against interest" by including the FactCheck quote, but I thought that that would be a weak argument if actual facts interpreted by apprpriate laws were thrown up against it. Research into Kenyan law convinced me that Obama Sr.'s pre-existing "tribal marriage" to Kezia was fully recognized in that country, would likely be given recognition in the U.S., and if ever subjected to a full analysis would be found to have rendered the later Hawaiian marriage to Dunham null/void. The lack of paperwork associated with what Kenyan laws then called "customary marriages" might be the reason why Dunham pursued a divorce lawsuit rather than seeking an annulment in 1964. (The inability of reporter Amanda Ripley of Time magazine to obtain a copy of the Obama/Dunham marriage license from the locality reported, by the divorce pleadings, to have issued it was troubling and raised further questions about whether it had ever even occurred.) Conclusion: One legitimate parent able to confer any citizenship and that parent an American + birth in Hawaii on U.S. soil = solely American citizenship and "natural born" at birth. St.Petersburg: an itemization of three phrases does not a critique make. |
|
|
|
Post by HoyaLawya on Aug 5, 2009 4:06:07 GMT -5
All of this nonsense begs the question why we should even have the natural born clause today. Same reason we had it before -- the need for a Commander in Chief of military forces to have absolutely NO divided loyalties to another nation. |
|
|
|
Post by HoyaLawya on Aug 5, 2009 4:12:35 GMT -5
All of this nonsense begs the question why we should even have the natural born clause today. Before California collapsed, the smart money was that Ah-NOLD was going to lead a push to have it retired so he could run and win. I'd favor the elimination of the natural born clause, but to replace it with a requirement that one be a US citizen for at least ten years. Seems a fair compromise to ensure that someone has been vested in the country for a fair amount of time. Orrin Hatch introduced a Constitutional Amendment proposal to change the nbc clause around the same time that Arnold was first running and the press was reporting on it as being designed to advance Arnold's future electoral prospects for POTUS. Horse hockey ... Arnold hadn't even cleared the first hurdle to gaining office in Cali at the time, and the smarter money knew that it was really an "assist" for McCain since his early adventures in the 2000 primaries had seen people raising questions about his eligibility. In fact, a comprehensive timeline of everything ever reported about McCain vis-a-vis POTUS ineligibility questions could trace all the way back to 1998. |
|
|
|
Post by HoyaLawya on Aug 5, 2009 4:24:44 GMT -5
I have completely lost track of what this thread was about. I think that was HoyaLawya's intention. If you start wading into the legal weeds, you can obscure the fact that there's simply no evidence Obama wasn't born in Hawaii and plenty of evidence that he was. I've been following this issue since the Democratic primaries (the PUMAs in particular are fascinating in a "can't look away" kind of way), and it's entirely clear that most conspiracy theories about the president are more subtle ways of saying "OMG, scary black man". [Boz prophylactic: I wrote "conspiracy theories", not "criticisms"] All birthers aren't racists, but they've certainly picked up a racist set of arguments without really thinking things through. All this legalese and goalpost shifting (quick poll: who ever heard of a "vault copy" of a birth certificate before all this?) is just cover for otherizing Obama. This is why it doesn't matter to adherents if the theory is true; the appropriate signals are being sent. The more cogent legal arguments concede the birth in Hawaii and regard as crackpot the claims about Kenya -- and they take a close look at whether the dual citizenship is the inherent problem. That "dual" concern isn't entirely an idle bit of speculation where Obama is concerned, inasmuch as he did seem to choose to involve himself in Kenya's election awhile back and on behalf of a specific candidate. Rare that a junior senator's actions in a foreign country find official protests being filed by that nation with our State Department. |
|
TC
Platinum Hoya (over 5000 posts)
Posts: 9,480
|
Post by TC on Aug 5, 2009 7:12:40 GMT -5
Same reason we had it before -- the need for a Commander in Chief of military forces to have absolutely NO divided loyalties to another nation. That's absurd. I'm sure John McCain is so conflicted with loyalty to Panama. The American electorate is crazy self-selecting on this issue. |
|
|
|
Post by StPetersburgHoya (Inactive) on Aug 5, 2009 8:05:55 GMT -5
I'm not going to quote it, but your response was completely non-responsive to my political question, standing, and rule 11 critiques. The fact that political parties play a role in naming electors and making attestations of qualifications makes the legislature and electors execution of their job no less a political question. If you want to challenge the state secretary of state's determination, you have a generalized grievance that is not justiciable. Which is why there was a group of political donors to both major parties' candidates who were, at one time, looking into a different choice of defendants and a class action lawsuit alleging the "unique harm" of having donated to candidates (a pecuniary investment made in good faith reliance) who had sworn themselves eligible but whose eligibility was later found to be suspect. (It wouldn't have named the SOS, and it would have relied upon diversity jurisdiction and jurisdictional amount to get around the "standing" problem of other lawsuits.) Before they were going to run into NYC to hire reputable and experienced class action counsel at a large firm, they were delving into the preliminaries of researching what the odds of success might be. And they were of the view that both national parties might have put up candidates with eligibility flaws. I thought their odds against McCain were 50-50 (he did himself no favors as research disclosed the series of misrepresentations he had made until Hollander unearthed the definitive document), and I made my contribution to their thinking as far as the reasons why I thought that an 'nbc' suit regarding Obama was the proverbial dog that wouldn't hunt. And it took the strictest possible legal requirement that could be argued, given the caselaw and historical documents tending to reflect what might have been the thinking of the Framers: Namely, that 'natural born' requires birth on U.S. soil and that both parents must be U.S. citizens by the time one is born. Dual citizenship would be found disqualifying under such a strict standard. One might argue that Obama's website had made an "admission against interest" by including the FactCheck quote, but I thought that that would be a weak argument if actual facts interpreted by apprpriate laws were thrown up against it. Research into Kenyan law convinced me that Obama Sr.'s pre-existing "tribal marriage" to Kezia was fully recognized in that country, would likely be given recognition in the U.S., and if ever subjected to a full analysis would be found to have rendered the later Hawaiian marriage to Dunham null/void. The lack of paperwork associated with what Kenyan laws then called "customary marriages" might be the reason why Dunham pursued a divorce lawsuit rather than seeking an annulment in 1964. (The inability of reporter Amanda Ripley of Time magazine to obtain a copy of the Obama/Dunham marriage license from the locality reported, by the divorce pleadings, to have issued it was troubling and raised further questions about whether it had ever even occurred.) Conclusion: One legitimate parent able to confer any citizenship and that parent an American + birth in Hawaii on U.S. soil = solely American citizenship and "natural born" at birth. St.Petersburg: an itemization of three phrases does not a critique make. This was AGAIN completely non-responsive. Spew whatever you want, you aren't answering my arguments and that's more telling than anything you've said in this thread. |
|
|
|
Post by HoyaLawya on Aug 5, 2009 13:31:52 GMT -5
Same reason we had it before -- the need for a Commander in Chief of military forces to have absolutely NO divided loyalties to another nation. That's absurd. I'm sure John McCain is so conflicted with loyalty to Panama. The American electorate is crazy self-selecting on this issue. Not necessarily -- the sticklers for Constitutional limitations simply would like to see the protocol followed if there's to be an amendment of the basic "contract" between a government and its people. McCain isn't too beloved by many families of M.I.A.s in Vietnam. Got any idea why? |
|
TC
Platinum Hoya (over 5000 posts)
Posts: 9,480
|
Post by TC on Aug 5, 2009 14:01:28 GMT -5
Not necessarily -- the sticklers for Constitutional limitations simply would like to see the protocol followed if there's to be an amendment of the basic "contract" between a government and its people. McCain isn't too beloved by many families of M.I.A.s in Vietnam. Got any idea why? I'm sure it isn't because he has allegiances to Panama, so I'm not sure why you bring that up. Are you saying that if he was born in MD or AZ he would have acted differently and the families of MIA's would have different feelings about him? BTW I don't think this is a one party thing - if McCain had been elected, I'm sure there would have been a liberal Orly Taitz. |
|
Boz
Blue & Gray (over 10,000 posts)
123 Fireballs!
Posts: 10,355
|
Post by Boz on Aug 5, 2009 16:04:18 GMT -5
OK, this REALLY needs to go in the Firday Fun thread, but we'll put it here. I have decided to share my birth certificate with Hoyatalk. Here it is.Feel free to make your own...... ;D ;D |
|
|
|
Post by HoyaLawya on Aug 5, 2009 16:12:13 GMT -5
St.Petersburg: an itemization of three phrases does not a critique make. This was AGAIN completely non-responsive. Spew whatever you want, you aren't answering my arguments and that's more telling than anything you've said in this thread. You cite standing. I link an article showing that standing would be an issue for anyone tackling the "natural born" issue in a federal court challenge to eligibility who didn't have any other "stake" than that of a voter. And the author of that article points to resort to state court to get around the problem (which the Donofrio and Wrotkowski suits already attempted). You cite Rule 11 ... lots of sections to it. I give you that link and invite you to be particular. Frivilous suit is exactly what a "different approach to suit" would seek NOT to be. You cite Political Question - court cited "political question" in the case of Markham Robinson vs. Bowen (SOS of California) where an elector for one of the independent parties sought to have McCain removed from the ballot and filed after Prof. Chin wrote up his law review article. www.law.com/jsp/article.jsp?id=1202424628932ays [McCain's] litigation associate Matthew McGill "It always seemed to me a fringe view that people born to personnel on military bases outside the territorial U.S. could not be natural born citizens."
Only problem: wasn't born on a military base. docs.justia.com/cases/federal/district-courts/california/candce/3:2008cv03836/206145/39/The Wong Kim Ark case which never ruled on natural born, but only citizenship, seems to have a lot of its dicta cited in a decision such as you see above. Interesting sidenote: Sauce for goose; not for gander. www.ballot-access.org/2008/100108.htmlMcCAIN WINS BALLOT ACCESS LAWSUIT
On September 16, U.S. District Court Judge William Alsup ruled that John McCain should be on the California ballot. Robinson v Bowen, C08-3836, n.d. The plaintiff, a presidential elector candidate for Alan Keyes, had argued that McCain is not "natural-born". Judge Alsup said that McCain is "natural-born." He also said that even if a candidate does not meet the constitutional qualifications to be president, he or she should still be on the ballot.
Every time a minor party presidential candidate who does not meet the constitutional qualifications to be president tries to get on the ballot, and the matter goes to court, courts rule that the candidate should not be on the ballot. The two leading cases are Cleaver v Jordan, in which the California Supreme Court said that Eldridge Cleaver should not be on the 1968 California ballot, and Jenness v Brown, in which a U.S. District Court in Ohio said that Linda Jenness (Socialist Workers Party presidential candidate in 1972) should not be on the ballot. Both Cleaver and Jenness were under age 35. Unfortunately, neither decision is reported, although the briefs in Robinson v Bowen cited the Cleaver case.
Judge Alsup wrote, "Mechanisms exist under the Twelfth Amendment and 3 U.S.C. 15 for any challenge to any candidate to be ventilated when electoral votes are counted, and the Twentieth Amendment provides guidance regarding how to proceed if a president elect shall have failed to qualify. Issues regarding qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review � if any � should occur only after the electoral and Congressional processes have run their course."
The party that most often nominates a presidential candidate, or a vice-presidential candidate, who does not meet the Constitutional qualifications, is the Socialist Workers Party, which has done this in 1972, 1980, 2004, and 2008. Each time the party used a stand-in who did meet the Constitutional qualifications (but only in those states which refuse to print an unqualified presidential candidate on the ballot). Each time except 1972, the party did not fight in court to place its actual nominee on the ballot. Perhaps, if the SWP or any other party nominates someone in 2012 who doesn't meet the Constitutional qualifications, the party can raise the issue in court again, this time depending on the Robinson v McCain precedent. GIVENS: 1) Suits by "ordinary voters" filed in federal court seeking to challenge eligibility criteria are doomed to fail on grounds of standing; I'm not here to debate that point and your "critique" would be of the path chosen by others. Why would/should I debate a point that I agree with?  ?? 2) Suits by parties who can prove a unique harm (because they are candidates or electors for those candidates or the heads of political parties advancing the candidates) are probably going to get past a standing challenge but might be doomed to fail due to Political Question. I'm not here to debate that point either although the P.Q. of what to do to resolve a problem, and to bring greater assurance to voters that a legitimate "vetting" process exists, is of interest. The "spew" as you so patronizingly call it takes you on an altogether different track in which prospective plaintiffs were looking at an alternative route. They didn't want to run into the roadblocks listed above. They were ready to settle for nothing more, at the end of the day, than rulings of fact (preponderance of available evidence) & law (a definition of a three-word term found in the Constitution) as the objectives of a suit that wouldn't run into standing or P.Q. problems. Their attitude was: Let others bent on ousting Obama try to figure out if a ruling in an action seeking pecuniary damages could be used in another context. It was the ruling on a definition, pure and simple, that they were after. Federal diversity jurisdiction, therefore, was the alternative path explored. An analogy for a layman might be the O.J. Simpson case. Acquitted in a criminal court; but found liable in a civil action for damages. What's the popular opinion of O.J. even though he never served a jail sentence for the deaths of two people? |
|
TC
Platinum Hoya (over 5000 posts)
Posts: 9,480
|
Post by TC on Aug 5, 2009 21:09:38 GMT -5
An analogy for a layman might be the O.J. Simpson case. Acquitted in a criminal court; but found liable in a civil action for damages. What's the popular opinion of O.J. even though he never served a jail sentence for the deaths of two people? Sure, it's exactly like OJ, except without all of the murder and the fact that these are stupid and frivolous lawsuits that are - as you admit - just attempts to find loopholes to destroy our democratic process in a completely partisan manner. Just think of what you're saying here - you're comparing OJ Simpson murdering two people to John McCain being born somewhere while his father was serving in a war. |
|
|
|
Post by StPetersburgHoya (Inactive) on Aug 6, 2009 0:31:16 GMT -5
This was AGAIN completely non-responsive. Spew whatever you want, you aren't answering my arguments and that's more telling than anything you've said in this thread. You cite standing. I link an article showing that standing would be an issue for anyone tackling the "natural born" issue in a federal court challenge to eligibility who didn't have any other "stake" than that of a voter. And the author of that article points to resort to state court to get around the problem (which the Donofrio and Wrotkowski suits already attempted). I cited the problems of removal jurisdiction and a state court being able to fashion a post-hoc remedy that does not impinge on the Article II powers that are already committed to the electors, the legislature, and Congress. You cite the fact that State Secretary's of State make a ministerial decision regarding candidate eligibility. Challenging this approximately a year later through the use of an extraordinary writ is specious and unlikely to succeed. A court will not fashion relief that goes beyond the bounds of what it may do constitutionally, where the Plaintiff has slept on his or her rights, and the court cannot workably enforce the remedy. I already stated this. You still refuse to deal with it. Of course, your argument also ignores the fact that courts have already dealt with this and dismissed state suits for the exact reasons I explained here. Ankeny v. Daniels in Indiana for example - www.therightsideoflife.com/?p=4669Wrotnowski v. Bysiewicz in Connecticut sought a Write as well - it was also denied. www.jud.ct.gov/external/supapp/Cases/AROcr/CR289/289CR9.pdfWhen you find a state court that grants relief via an extraordinary writ then I'll listen to you. However, every court that's considered it has denied relief. You cite Rule 11 ... lots of sections to it. I give you that link and invite you to be particular. Frivilous suit is exactly what a "different approach to suit" would seek NOT to be. Say what you want. The DC Circuit has previously dealt with attorneys attempting to "take a different approach" to make their natural born citizen arguments. They have imposed Rule 11 Sanctions. www.scribd.com/doc/13613272/ORDER-Finding-Rule-11-Violation-in-Hollister-v-Soetoro-March-24-2009You cite a case which states clearly that the review of a candidate's eligibility is consigned to another branch. Judicial review might be possible, but the opinion's dictum doesn't go as far as to say it definitely exists. Furthermore, it states that the issue could only be dealt with at a point when a Plaintiff's claims would be moot or barred by laches. Thank you. I am correct. I'm glad that was a given. Federal Diversity jurisdiction still creates all the same problems noted in the state suits, as well as Rule 11. If you are going for a decision for damages, you aren't going to get them - damages are speculative - you can't put a dollar amount on being able to vote for someone who was not a citizen or an improper certification of a candidate. In addition, you are going to run into the burden of proof problem discussed earlier. |
|
RusskyHoya
Diamond Hoya (over 2500 posts)
In Soviet Russia, Hoya Blue Bleeds You!
Posts: 4,912
|
Post by RusskyHoya on Aug 6, 2009 8:21:37 GMT -5
Er, correct me if I'm wrong, but it doesn't matter if McCain was born on a military base or not, thanks to 8 U.S.C. § 1403:
§ 1403. Persons born in the Canal Zone or Republic of Panama on or after February 26, 1904
(a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.
(b) Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States.
It's possible to debate the "true" meaning of "natural-born citizen" until the cows come home, but I have a hard time picturing any judge viewing the spirit of that code as anything other than conferring natural-born citizenship on the children of Americans born in the Canal Zone and Panama as a whole.
Moreover, based on everything I've seen (my own legal status has necessitated my doing a fair amount of research into citizenship issues), the foreign-born children of U.S. citizens are given pretty much the exact same status and treatment as those born on American soil (assuming that the State Department's procedures are followed, specifically: "The American parents of a child born abroad should report the birth to the Consulate General. The Consulate General will issue a Consular Report of Birth Abroad (Form FS-240), and a U.S. passport. The Report of Birth Abroad may be used as a birth certificate for school, work, or other purposes."
It is true that the State Department says the following: "the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes." However, this statement should not be taken to mean that the opposite is necessarily true; it is simply an indication that DoS doesn't want to wade into this unresolved issue and publish a definition of natural-born citizenship that it does not have authority to formalize. As far as common law is concerned, from what I've seen, foreign-born children of U.S. citizens are treated the same as those born in the U.S., and I think the courts would probably extend this to presidential eligibility if it came to a ruling.
|
|
|
|
Post by HoyaLawya on Aug 6, 2009 12:12:17 GMT -5
Federal Diversity jurisdiction still creates all the same problems noted in the state suits, as well as Rule 11. If you are going for a decision for damages, you aren't going to get them - damages are speculative - you can't put a dollar amount on being able to vote for someone who was not a citizen or an improper certification of a candidate. In addition, you are going to run into the burden of proof problem discussed earlier. The group that got together and wanted some preliminary research were actual donors to the candidates and a couple of them had served as so-called 'bundlers' of six-figure amounts and up, or, as to one who owned a company, he had established a PAC for his employees ... therefore, the damages would not have been speculative, nor would the cause of action have cited their inability to vote for an "eligible" candidate as its claim of harm or the cause of pecuniary harm. Rather, the action would have been in the nature of claiming that the named defendants had solicited funds under false pretenses with RICO overtones. [Don't want to get into a long digression but suffice it to say that preceding the non-binding, hastily-concocted Sen. Res. 511 getting a voice vote in May '08 just as the quest for McCain's b.c. was about to achieve fruition, there had been some legislative initiatives involving a fairly confined "cast of characters" in Congress which "went nowhere" and which had attempted to impose a legislated and extremely liberalized definition to the Constitutional term 'natural born citizen.' They clearly seemed destined, had the initiatives ever passed, to be challenged and ruled unConstitutional for exceeding the express delegation to Congress to develop a "uniform rule" respecting naturalization of citizens and/or ostensible powers to legislate plain vanilla "citizenship"or its "at birth" variant under the 14th Amendment. Here's a flavor of the kind of bills that had cropped up: www.govtrack.us/congress/bill.xpd?bill=s108-2128 Once they became aware of what had gone on in Congress from '04-'08 (and that awareness was in the weeks, indeed a couple months, after November '08), these folks flat-out smelled something "fishy" in the back corridors of power among pols jockeying for position for the '08 race, and trying to "clean up" the window dressing for the "natural born" eligibility criteria. Those who had contributed to the GOP standard-bearer felt the measures were to benefit Obama or a future Dem candidate who might appeal to newer immigrant groups or people who might wholesale join the Dem party if blanket amnesty ever were to be passed for undocumented people now residing in the U.S.; those who contributed Dem felt the measures were to benefit Bobby Jindal or Arnold; but they'd all come around to a viewpoint that the major parties were hotbeds of chicanery ... yeah, I know, chicanery? politicians? Alert the Media!!! as if that's news. But, bottom line, these folks harbored a sense of outrage that there might have been horse-trading that resulted in making both party candidates steer away from attacking the other on eligibility grounds. Hence, no press coverage of the topic, unlike the LBJ and Goldwater race where there'd been more. Hence, or so these folks thought, there'd been a large degree of unawareness by the voters, the majority of whom aren't denizens of the blogosphere. The folks who were part of the group didn't "buy" the nonsense about the media being "in" on some kind of vast conspiracy to suppress adverse information about Obama ... they're business people who think that reporters are lazy and that issues get media attention largely as the result of the candidates saying something that provides a sound bite. ] Anyway, damages would have been the documented amount of the actual donations which, in turn, had to have been given during specific periods during which a claimed misrepresentation was in play. These were measurable dollar damages as to these 'wannabe' class representatives. The filing date of the "strong form" Arizona declaration of candidacy for that state's primary was a potential unifying starting date for a class period for all candidates believed to have misrepresented their Constitutional eligibility. Although, it could be argued that donations preceding that common initiating date should be included provided that there was something in the public record accompanying the declaration of candidacy which had been explicit about the candidates' claim to Constitutional eligibility. The cutoff dates of the class period would have differed as to each of the two major party nominees. For Obama, it would have been the date when his Fight The Smears website chose to make a wholesale inclusion of the "independent findings" by FactCheck announcing a dual citizenship in Kenya which expired in 1982 for wont of affirmative "election" by him to take up sole Kenyan citizenship at age of majority. (A techie searched some kind of Way Back Machine or cache-memory bot-crawling programs to determine the date when that webpage revision went up and pinned it down to a specific date in August '08.) Donations after that date wouldn't count on the theory that the revelation of dual citizenship became synonymous with an "admission against interest." For McCain, it would have been the date when the original birth certificate for McCain was turned over to one of the plaintiffs in the eligibility suits vs. McCain, and that document had been accompanied by the affidavit of the present-day President of the Panamanian R.R. Company whose archives house such birth records. The date on the affidavit, which was sometime in June '08, became the cutoff for the class period as to him. It was debatable whether the document had been sufficiently "publicized" outside of the litigation into which it had been entered as an Exhibit for several months thereafter, such as to make that an appropriate cutoff date. Supporting that contention would have been the fact that Professor Chin's article did not incorporate the new information despite its m Editedcript being in circulation during July/August and a chance to do a last-minute revision before the September '08 special issue of the Michigan Law Review devoted solely to Presidential eligibility topics. I sensed that you were on a parallel track and "stuck" on the idea that the plaintiffs would be solely voters. Not so. The people who were prospective plaintiffs were donors. As for the claim that I'm trying to equate the murder of two people with this kind of litigation, hogwash. The point being made is that if you feel a "wrong" might have occurred, and the venue which carries the highest stakes doesn't deliver the result that you believe serves justice, then sometimes you can get a "moral victory" in some other venue where stakes might be lesser. The "voter cases" and the "other candidate" cases sought disqualificaiton from a ballot and/or loss of office. (High stakes, just as jail time would be a high stakes outcome.) A class action lawsuit to recover donations from some candidates' campaign funds would be a "lesser stakes" approach, just as an award of damages from a civil action that found by a "preponderance of the evidence" that O.J. played a role in the deaths of two people was of some solace to the surviving families of the murder victims. What was the goal? To force a court to define "natural born citizen" in the Presidential context that the Constitution invokes by making it a requirement for that office. There have been cases in which more ordinary citizens have been ruled "natural born" by virtue of birth on American soil to two citizen-parents (e.g., Perkins v. Elg). But the case where such a definition would really count would be one involving a Presidential race. |
|
Bando
Golden Hoya (over 1000 posts)
I've got some regrets!
Posts: 2,431
|
Post by Bando on Aug 6, 2009 14:53:08 GMT -5
HoyaLawya, I still don't see any evidence, precedence, or even a strong argument why dual citizenship would override natural born citizenship. This seems like you're throwing everything against the wall in the hopes something will stick.
St. Pete, is that right, or am I missing something here?
|
|
|
|
Post by HoyaLawya on Aug 6, 2009 16:38:40 GMT -5
HoyaLawya, I still don't see any evidence, precedence, or even a strong argument why dual citizenship would override natural born citizenship. This seems like you're throwing everything against the wall in the hopes something will stick. St. Pete, is that right, or am I missing something here? The viewpoint is going to depend on whether someone believes in "originalist" interpretation or some kind of "spirit of the law" construction/definition when it comes to the Constitution. An originalist would go back to the era to understand the context that brought forward the three words as a term of art. If you roll the Time Machine backwards in time, in search of legal context clues, you're going to find cases like Barry v. Mercein 46 U. S. 103 (1847). up before SCOTUS and, in summarizing one of the petitioner's points which was reflective of the law of the era, you come up with this: "The plaintiff in error being of legeance to the crown of England, his child, though born in the United States during his father's temporary residence therein - twenty-two months and twenty days - not withstanding its mother be an American citizen, is not a citizen of the United States. It is incapacitate by its infancy from making any present election, follows the legeance of its father, partus sequitur patrem, and is a British subject. The father being domiciled and resident within the dominions of Her Britannic Majesty, such is also the proper and rightful domicil of his wife and child, and he has a legal right to remove them thither. The child being detained from the father, its natural guardian and protector, without authority of law, and writ of habeas corpus ad subjiciendum is his appropriate legal remedy for its restoration to him from its present illegal detention and restraint. Constitution United States, art. 3, sec. 2; Judiciary Act, 1789, sec. 11; Inglis v. Trustees Sailor's Snug Harbor, 3 Peters, 99; 7 Anne, cap. 5; 4 Geo. III. cap. 21; Warrender v. Warrender, 2 Clar. & Fin. Ap. Ca. 523; Story's Confl. Laws, 30, 36, 43, 74, 160; Shelford on Marriage, Ferg. Rep. 397, 398." Good resource to figure out the context of the times is Joseph Story's Commentaries: books.google.com/books?id=Cs7sXv67qOAC&pg=PR1&lpg=PR1&dq=Joseph+Story+Commentaries+on+the+Conflict+of+Laws+1834&source=bl&ots=zx0eKn4Pei&sig=g1i_-iyxSV7SfyZvWLxowi6r7N8&hl=en&ei=Q2VrSojLF5XiMbu09fgG&sa=X&oi=book_result&ct=result&resnum=8#v=onepage&q=&f=false books.google.com/books?id=DW8DAAAAQAAJ&dq=joseph+story+commentaries+on+the+conflict+of+laws&printsec=frontcover&source=bl&ots=S-z8yO8_-E&sig=iE7mBK27XZAlns9Xt7ic7ILJbIY&hl=en&ei=XL9rSqL2CYX0MbHo_fgG&sa=X&oi=book_result&ct=result&resnum=1#v=onepage&q=&f=falseLike I said, in that era, a woman's citizenship became extinguished upon marriage if she married someone who was of a different nationality because she took his citizenship. And if an immigrant family arrived in the U.S., it was only the father who became "naturalized" and the names of wife and minor children would get tacked onto the paperwork as additional parties being naturalized in "follow form" fashion as it was filed in the County at the time the oath of citizenship was administered. I'm not going to argue that the Constitutional provision might not be outmoded but I would argue that an "originalist" review of the term 'natural born citizen' takes you into historical waters you might not routinely chart as a lawyer. You go back to an era when a mother's ability to impart citizenship was, in the Western world, a function of her being an unwed mother. And I'd also argue that we have a mechanism for changing the Constitution so in "play by the rules" fashion, if we need to amend it, then just amend it. 26 attempts have been made to alter n.b.c. as a requirement and for some reason all 26 have gone nowhere. Now ... let's turn to the "slavery exception" ... which blighted the legal landscape for 204 years. 1. partus sequitur ventrem - the child inherits the condition of the mother; 2. partus sequitur patrem - the child inherits the condition of the father. The English Common Law tradition was largely the latter (and noted in Joseph Story's Commentaries), until in 1655, a slave* of mixed color sued for her freedom and that of her child after it was determined that the child's father was a freeman. After she won her freedom in that case, the law was changed; that all "Negroe" women were to follow partus sequitur ventrem from then on. So it became a race-specific exception to generally applicable patrem rules to go with ventrem in the matter of slavery. Some other old chestnuts: United States v. Sanders, 1847, Hemp., 483, 485, Ex parte Reynolds, 1879, 5 Dill., 394, 402 Then in connection with the the Civil Rights Act of 1866, Justice Noah Haynes Swayne in U.S. v. Rhodes declared that: "All persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together." But the legislative history of that Act and of the 14th Amendment clearly shows the sponsors, in recorded debate, specifying that the allegiance must be "sole" allegiance. Which is why Indians (as in Native Americans) were not accorded U.S. citizenship despite birth on soil -- they were under tribal jurisdiction / allegiance. Then in 1898, there is United States v. Wong Kim Ark and, Chief Justice Melville Fuller, dissenting states the hoary old general rule: "It seems to me that the rule, 'Partus sequitur patrem', has always applied to children of our citizens born abroad, and that the acts of congress on this subject are clearly declaratory, passed out of abundant caution, to obviate misunderstandings which might arise from the prevalence of the contrary rule elsewhere." Then flash into the 1930's and Perkins v. Elg where as part of its ruling, SCOTUS found Miss Elg to be a "natural born citizen" because she met the criteria of being born in the U.S. (in New York) and of parents who were both naturalized American citizens at the time of her birth. (The mother had "followed form" upon her husband's naturalization.) |
|
?? 