Hoo, brother ...

[Cambridge]

As much as I can understand and appreciate originalist thinking, nothing about court decisions from the mid-19th century strikes me as pertinent to the mentality of the Framers. The Constitution was ratified in 1789 and the last founding father died in 1836 (Madison), a full ten years before the earliest case you cited. So, in short, I find it disingenuous to claim originalist standing when you are citing decisions crafted and reasoned by men who were not the Framers and for some of the later decisions you cited, not even the Framers' proverbial sons but their grandsons. This is the equivalent of looking to decisions from the 1940s to determine what the intentions were of those who drafted the laws of the 1890s.

[Boz]

How many words has Lawya typed in this thread and how many hours has he billed his clients for it?

;D

[HoyaLawya]

Aug 6, 2009 8:21:37 GMT -5 RusskyHoya said:

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.

Russky:
That's the statute that U. of Arizona's Professor Chin researched in his law review article and found to have passed "11 months too late" to have been of any help to McCain. He posits that the condition of natural born citizen must attach "at birth" and that McCain may not have even had citizenship "at birth" much less the natural born variety.

The law you cite to is one that was made retroactive to 1904, and it was enacted in 1937 on a date some 11 months after McCain had been born. It conferred "citizenship" -- not necessarily 'natural born' since that might rise to more than the Congress can rightfully "legislate" given its Constitutionally limited delegation of authority to come up with a uniform rule of naturalization which looks to only citizenship.

On that latter point: There was a statute enacted in 1790 which stated that the children born to two American citizens abroad would be citizens and treated as if 'natural born' and that statute got cited in Sen. Res. 511 which passed on a voice vote in May 2008. However, what was overlooked by the Resolution and the "paid for" legal scholarship on behalf of McCain by Lawrence Tribe that was advanced to support such a Resolution, is the fact that the 1790 law underwent a wholesale repeal and was rewritten in 1795 and the 'natural born' language was dropped.

A fair amount of effort has gone into trying to find any legislative history for WHY the words "natural born" were dropped in the 1795 law in a sentence which was otherwise left intact from the repealed 1790 law. The journals of the era (for a Congress which had nothing like the record-keeping protocols which would later develop memory.loc.gov/ammem/amlaw/lwac.html) don't delve into a reason.



It might have been thought to be definitionally inconsistent with what everyone understood natural born to mean, or to be beyond the delegated powers of Congress to attempt to "legislate" at all. In 1795, less than a decade away from the drafting of a Constitution and still mindful of the relative autonomy of the states under first and looser scheme of national government after the Revolutionary War ended, there likely would likely have been a greater sensitivity to the "limited" aspect of that which a Congress for the newly created United States could barge on out and do. The main points of contention in 1790 and 1795 centered around an adequate period of residency before someone could become eligible for naturalization (2 years was adopted in '90; 5 years in '95, then 14 years in 1798).

Going back to 1787 when Article II was being written, it might be noteworthy that the first draft dated June 18, 1787 from Alexander Hamilton would have read as follows:

“ No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.

Then came the July 25, 1787 letter from John Jay to George Washington, presiding officer of the Convention. Jay wrote:

“ Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.

I don't want to make overly much of it, but I don't think this was a distinction without a difference. It looks like whatever Jay (who would later serve on SCOTUS) was proposing was a tightened-up eligibility requirement.

[HoyaLawya]

Aug 6, 2009 17:54:04 GMT -5 Boz said:

How many words has Lawya typed in this thread and how many hours has he billed his clients for it?

;D

Ah, Boz ... I left law in favor of philanthropy awhile ago. After concluding some "too many years" down the private practice pathway that there was something abnormal about partitioning one's workday into sometimes 6 minute "bites" of time. ;D (There's probably something to commend the plaintiffs' bar which works on contingency fees or on class action lawsuits and aren't so tied to meter tending.)

[Bando]

It seems President Obama has cleared this up: he was born in Hawaii, but he's a Cylon.

Also, given HoyaLawya's profession, I'm going to go ahead and start the conspiracy that he's Bruce Wayne.

Also: create your own Kenyan birth certificate!

[StPetersburgHoya (Inactive)]

Aug 6, 2009 17:54:04 GMT -5 Boz said:

How many words has Lawya typed in this thread and how many hours has he billed his clients for it?

;D

Bill it all to admin codes. This is "client development."

[HoyaLawya]

Aug 7, 2009 5:21:34 GMT -5 StPetersburgHoya (Inactive) said:

Aug 6, 2009 17:54:04 GMT -5 Boz said:

How many words has Lawya typed in this thread and how many hours has he billed his clients for it?

;D

Bill it all to admin codes. This is "client development."

;D ;D

The way things turned out, it became "client discouragement" when my 2 cents were thrown in about the probable outcomes. (If I were working on "development" there'd be a pecuniary angle for donning the blinders of overly energetic advocacy -- nicer to be able to just calls 'em as one sees 'em.)

For me, there was just no getting around that bigamy angle on Obama's father, and its legal impact on the status of the son as a natural born citizen, born in Hawaii, taking his nationality from only one parent who'd be viewed as "sole legitimate parent" in the eyes of the law, and therefore Obama is not even "conflicted" by dual citizenship.

[StPetersburgHoya (Inactive)]

Aug 8, 2009 11:38:15 GMT -5 HoyaLawya said:

Aug 7, 2009 5:21:34 GMT -5 StPetersburgHoya (Inactive) said:

Bill it all to admin codes. This is "client development."

;D ;D

The way things turned out, it became "client discouragement" when my 2 cents were thrown in about the probable outcomes. (If I were working on "development" there'd be a pecuniary angle for donning the blinders of overly energetic advocacy -- nicer to be able to just calls 'em as one sees 'em.)

For me, there was just no getting around that bigamy angle on Obama's father, and its legal impact on the status of the son as a natural born citizen, born in Hawaii, taking his nationality from only one parent who'd be viewed as "sole legitimate parent" in the eyes of the law, and therefore Obama is not even "conflicted" by dual citizenship.

And for me, there's no getting around the fact that you have been punk'd.

washingtonindependent.com/54104/punkin-the-birthers-priceless

[HoyaLawya]

Aug 9, 2009 15:41:55 GMT -5 StPetersburgHoya (Inactive) said:

And for me, there's no getting around the fact that you have been punk'd.

washingtonindependent.com/54104/punkin-the-birthers-priceless

Somebody's been punk'd but, if you read my first post, you'll see it wasn't me. I flat out stated that I thought Big O was born in Hawaii.

Don't stick in the Litigation Dept. too long StPBH ... it warps the personality to the point where arguments get "picked" where none really existed in the first place. Plus the divorce and heart attack rates are pretty killer.

[jerseyhoya34]

Not to give the Birthers any more attention, but their leader - Orly Taitz - appeared before a federal judge in connection with an Army officer's refusal to deploy to Iraq.

Suffice to say that this appearance before a W. appointee could have been better.

www.ledger-enquirer.com/news/story/839473.html

[jerseyhoya34]

As a postscript, the Court denied the TRO motion of Taitz in a rather scathing opinion - tinyurl.com/qq7a73

It is worth the read if only for sport.

[Elvado]

If I were working for President Obama, I would be paying the birthers to keep up their quixotic nonsense. Every moment devoted to their silliness is one more moment which does not focus on his policy failures.

[rosslynhoya]

Recent gubernatorial polling in New Jersey took a fun detour; their research reveals that 37% of New Jerseyites believe either that Obama is not a natural born citizen or that the Bush administration was complicit in the 9/11 attacks.

publicpolicypolling.blogspot.com/2009/09/extremism-in-new-jersey.html

Naturally, three percent enjoy the privilege of belonging to the elusive Birther-Truther demographic, explaining the consistent electoral returns for Lyndon Larouche and Ron Paul.

[jerseyhoya34]

Just when you thought it could not get more comical, Taitz files a motion for rehearing (among other things). This is simply fantastic.
tinyurl.com/l46hvx

[HoyaLawya]

The procedural glitches are amazing, but she got her law degree from some kind of Match Book U. and never really practiced law - as far as I can tell -- until this issue caught her attention. Dentistry seems to have been her "real job" until recently.

People in quest of the original birth certificate are kind of missing the real point which, as learned articles from Yale Law and the like have noted, is that there's never been a definition of 'natural born citizen' handed down by the Supremes in a context where it involved the relevant clause in the Constitution and facts impacting a President-elect.

Keeping their distance from the Orly Taitz's and Phil Berg's of the world with esoteric (and seemingly lunatic) theories about births in Kenya, but interested in that 'natural born' definition, there's a group of lawyers, students, teachers, historians and archivists who've been going through thousands of documents dating back to times leading up to, during, and shortly after the Constitutional Convention. First installment of a serialized work got posted online for some critical review.

undeadrevolution.wordpress.com/2009/09/06/the-meaning-of-natural-born-citizen/

The group is hubbed out of UCONN but involves people from a variety of other colleges. Should be interesting to see how it develops. They've found enough material to write a book, but want to keep this to "learned article length" and probably hope to get it published somewhere when it's completed, vetted, and tweaked.

In a nutshell, citizenship of a child "followed that of the father" back in 1789 except where the child was born out-of-wedlock and took citizenship from the mother. Fast-forward to the 1948 British Nationality Act and the same general rule held true, in what was "law on the books" at the time Obama was born and the ability of a father to pass his U.K. citizenship to a son born abroad of a non-U.K. mother. It hinged on there being a legitimate marriage.

I think that a solid ruling on a definition is more important than any "outcome" impacting Obama, because the "outcome" would be in his favor. After reading up on the Kenyan marriage statutes (Marriage Act; CAP 150, Section 49)

www.kenyalaw.org/kenyalaw/klr_home/

and some commentary about "customary marriages" in Kenya and other African countries coming out of a collaboration involving a women's law group at Georgetown Law ...

www2.ohchr.org/english/bodies/cescr/docs/info-ngos/FIDAKenya41.pdf

... I'm convinced that "no way" was Obama Sr. at liberty to get married in Hawaii, rendering any island-of-Maui marriage null / void (if it even happened at all, given that an actual marriage license is just as elusive as an original of the birth certificate).

Obama is a natural born citizen due to (1) birth in Hawaii and (2) only one parent in a legal position to impart any citizenship to him and that was his 100% all-American mother.

Period. Stick a fork in it. FactCheck's legal analysis was faulty in claiming dual citizenship and that's probably because it didn't do much homework about foreign marriage laws in Kenya. Obama's website probably shouldn't have excerpted the quote from FactCheck and thereby seemingly "endorsed" it. But at the time the website did so, Obama was battling Phil Berg's claim that he wasn't even a citizen at all, which had been rattling around in the culture from the Hillary camp's supporters all the way back to the primaries. And it wasn't going to help his cause with voters to come right out and say that "Dad was a bigamist" and "Mom was unwed" ...

FactCheck has recently backed down from one small aspect of its legal analysis, which related to the age when a dual citizen could "elect" for sole Kenya citizenship.

While Orly Taitz is a disaster of serialized blunders, the DOJ lawyers making appearances to represent Obama and other government officials in the case pending before a judge named Carter out in California seem to have done some selective "editing" of a statute they cited in their Motion to Dismiss ... interesting.

naturalborncitizen.wordpress.com/2009/09/17/barnes-v-obama-important-discovery-is-available-now-according-to-judge-carters-order-of-sept-17-2009/

[Bando]

Sure, Lawya. Those other people are the crazies that are making you look bad. Right.

[HoyaLawya]

"Look bad" are two sequential words I wouldn't be using, Bando (Walter?) if I had your avatar. ;D


In "get out the popcorn!" fashion:

1. Donofrio is jumping back into the fray, but this time in Hawaii, where it's come to light that Obama must have made requests to amend his birth certificate

naturalborncitizen.wordpress.com/2009/09/21/pending-litigation-hawaii-confirms-that-obamas-vital-records-have-been-amended/

naturalborncitizen.wordpress.com/2009/09/24/terrik-investigation-part-1-hawaii-department-of-health-directors-fukino-and-akubo-are-guilty-of-misdirection/

I'd be kind of interested in knowing how many times it's been amended. Adoption by Soetoro would have been one. Another amendment to "undo" Soetoro and revert to his original status (and name) might have been another amendment he requested, allowing for the Certification to be generated in June 2007 which used "Barack" (no more "Barry") and "Obama" (no more "Soetoro").

2. A letter got sent to that judge in Georgia, allegedly from the client, and saying that Orly was no longer authorized to put any pleadings into that case and claiming there had been an unauthorized submission. It was sent by FAX.

theleftinme.blogspot.com/2009/09/orly-taitz-client-lays-pimp-hand-down.html

This was after the judge put off the original hearing because he wanted the client in his courtroom, and not off in Kansas with her unit (which was getting ready to deploy to a war zone).

www.ledger-enquirer.com/news/story/836629.html

3. The "highly credible" [ ;D) Larry Sinclair comes out from under whatever rock he was hiding under after his National Press Club "debut" (claiming "gay relations" and "snortin' lines of cocaine" with BHO) to claim

A) that Orly tried to put him up to lying. (A skill that his rap sheet would attest to, without Orly doing anything.)

washingtonindependent.com/59616/larry-sinclair-orly-taitz-told-me-to-lie-claim-that-obama-had-people-killed

B) that the letter sent by the soldier, repudiating any future filings done by Orly, must be a forgery because its author would not have been allowed off-post -- much less trudging 12 miles to an Office Max outlet -- on the same date she was catching a flight to go on active duty in a war zone. And he claims that video cams inside the Office Max store didn't show anybody using the FAX machines. And these claims seem to appear (now) only in commentary to a TV station news story ....

www2.wrbl.com/rbl/news/local/article/10000_sanction_proposed_against_birther_lawyer/93364/

[Bando]

Sept 24, 2009 13:58:17 GMT -5 HoyaLawya said:

"Look bad" are two sequential words I wouldn't be using, Bando (Walter?) if I had your avatar. ;D


In "get out the popcorn!" fashion:

1. Donofrio is jumping back into the fray, but this time in Hawaii, where it's come to light that Obama must have made requests to amend his birth certificate

naturalborncitizen.wordpress.com/2009/09/21/pending-litigation-hawaii-confirms-that-obamas-vital-records-have-been-amended/

naturalborncitizen.wordpress.com/2009/09/24/terrik-investigation-part-1-hawaii-department-of-health-directors-fukino-and-akubo-are-guilty-of-misdirection/

I'd be kind of interested in knowing how many times it's been amended. Adoption by Soetoro would have been one. Another amendment to "undo" Soetoro and revert to his original status (and name) might have been another amendment he requested, allowing for the Certification to be generated in June 2007 which used "Barack" (no more "Barry") and "Obama" (no more "Soetoro").

2. A letter got sent to that judge in Georgia, allegedly from the client, and saying that Orly was no longer authorized to put any pleadings into that case and claiming there had been an unauthorized submission. It was sent by FAX.

theleftinme.blogspot.com/2009/09/orly-taitz-client-lays-pimp-hand-down.html

This was after the judge put off the original hearing because he wanted the client in his courtroom, and not off in Kansas with her unit (which was getting ready to deploy to a war zone).

www.ledger-enquirer.com/news/story/836629.html

3. The "highly credible" [ ;D) Larry Sinclair comes out from under whatever rock he was hiding under after his National Press Club "debut" (claiming "gay relations" and "snortin' lines of cocaine" with BHO) to claim

A) that Orly tried to put him up to lying. (A skill that his rap sheet would attest to, without Orly doing anything.)

washingtonindependent.com/59616/larry-sinclair-orly-taitz-told-me-to-lie-claim-that-obama-had-people-killed

B) that the letter sent by the soldier, repudiating any future filings done by Orly, must be a forgery because its author would not have been allowed off-post -- much less trudging 12 miles to an Office Max outlet -- on the same date she was catching a flight to go on active duty in a war zone. And he claims that video cams inside the Office Max store didn't show anybody using the FAX machines. And these claims seem to appear (now) only in commentary to a TV station news story ....

www2.wrbl.com/rbl/news/local/article/10000_sanction_proposed_against_birther_lawyer/93364/

So your definition of "come to light" is "an anonymous internet poster told Donofrio she got some correspondence, which no one has posted. Based on his track record, I'm going assume he's lying.

Lawya, you have to step back from the brink, buddy. You are giving undue credence to people who are clearly insane. Donofrio is not an expert in constitutional law. He is a racist crank. Tatiz is a dentist who got her law degree from an unaccredited online law school. And Larry Sinclair is convicted fraudster. Why oh why do you think the insane ramblings of these people are worthy of our attention?

[rosslynhoya]

Scooter Libby was convicted with far less evidence on hand, from far more unscrupulous characters, than what HoyaLawya just detailed in his last post.

Thank goodness Eric Holder hasn't appointed an independent counsel to bring the truth to light or we might all be very amused during a slow news cycle.

[HoyaLawya]

Sept 24, 2009 15:28:39 GMT -5 Bando said:

So your definition of "come to light" is "an anonymous internet poster told Donofrio she got some correspondence, which no one has posted. Based on his track record, I'm going assume he's lying.

His blog suggests he's going to post images of the requests and responses. Let's see if he follows it up. Of the various people heading into the courtroom before election day, Donofrio was interesting for having challenged Bush, Obama and Calero as all being ineligible. He also wasn't demanding a birth certificate; he simply pointed to a dual citizenship "admission" published on Obama's website and said that the "fact pattern" it presented might need a formal legal ruling.

Interestingly, on an interpretation of a statute, he got FactCheck.org to "blink" and revise something it had published.

naturalborncitizen.wordpress.com/2009/09/04/factcheck-org-capitulates-admits-error-in-obama-kenyan-citizenship-analysis/

And since he reactivated his law license (making a report and payment into the Client's Security Fund, no doubt) in order to pursue the case he filed last fall, he apparently got another "correction of the record" from FactCheck.org.

Sept 24, 2009 15:28:39 GMT -5 Bando said:

Lawya, you have to step back from the brink, buddy. You are giving undue credence to people who are clearly insane. Donofrio is not an expert in constitutional law. He is a racist crank.

Wow, Bando ... please SHARE what you KNOW about the guy. Have you met him? Has he confided his racist tendencies to you? I mean, if you SAY SOMETHING IS SO, then it MUST BE SO and you'd be basing it on bona fide information. Wouldn't you, buddy?

Sept 24, 2009 15:28:39 GMT -5 Bando said:

Tatiz is a dentist who got her law degree from an unaccredited online law school. And Larry Sinclair is convicted fraudster. Why oh why do you think the insane ramblings of these people are worthy of our attention?

I think I'm the one who made note of both of those facts, but thanks for the regurgitation, Bando. What a buddy you are. ;D It's called segregating out the "not credible" from the "maybe credible" sources of information.

If find it curious just how "incurious" the press was in vetting the candidates' backgrounds in this last election cycle. It seemed like the information about McCain "giving up secrets" to his North Vietnamese captors which families of POWs and MIAs had been alleging for years (as being the self-serving and self-concealing "real reason" that McCain blocked declassification of military records these people wanted) didn't get much ink. Neither did McCain's frank admission -- "I broke" -- which he inserted in his acceptance speech to (no doubt) diffuse the issue in the campaign ahead. Oh well. YAWN.

In a similar vein, the Fourth Estate's vetting of Obama seemed to be of the Investigation Lite variety, even as it ran with stories about Palin being the "faux mother" of her Down's Syndrome infant in order to conceal the "true fact" that one of her daughters was the "real" mother. [And I'm not a Palin fan, but it was simply odd how some things got ink; some things did not.]

So pardon me, buddy, for having a curious nature. And wondering whether the eventual digging up of Obama's vital records (in original form) will be as enlightening as the ones that Fred Hollander finally dug up on McCain. (Thereby "proving the lie" of what McCain had been claiming.)

Like I've said, I think Obama is probably going to turn up as a natural born citizen but hopefully that is not from some twisted or strained legal interpretation of what the 'natural born citizen' definition is ... but rather, from the likelihood that his mother was never legally married. As a politician, he wouldn't want to come off as a poster boy for how the offspring of the unwed can "do well in life"; as a father, he wouldn't want the rep of his daughters' grandmother to suffer in their estimation; but as a POTUS candidate, he should be deemed to have agreed to "swim in the fishbowl" required of candidates for that office so that people don't harbor any beliefs that he flauted the "rules of the game" and ran as an ineligible candidate.