Put your Obama Conspiracy comments not related to the current articles here. Comments on this thread will close in two weeks.
Sorry, I forgot to put up the new open thread on time.
Cranking natural born citizen
When someone comes along with a theory they think is obvious, but that hardly anyone else thinks is right, and the one holding the theory has no special expertise in the field, I’m apt to label the theorist a “crank.” I’ve done it on this blog. Today, however, I’m swapping roles and being the crank.
Most legal scholars believe that anyone who is born a US Citizen is a natural born citizen, and meets that piece of the eligibility requirement to become President of the United States. I fully agree. Where I fit my own definition of a crank is the way that I arrive that conclusion.
One mark of a crank is making legal arguments out of a dictionary instead of law and precedent. So I start cranking with the dictionary definition of “natural born” which is “having a quality at birth.” The Constitution doesn’t define “natural born citizen" but I have never found any document from our Founders that says “natural born citizen” has a special technical definition. Why does it have to be a “term of art?”
If you think about it, the lack of a definition in the Constitution makes sense because in 1789 citizenship was defined by the States and not the Federal Government. Congress only had the power of naturalization under the Constitution and therefore they couldn’t define the citizenship of persons already born that way. That is, if natural born citizen means “citizen at birth” then the Constitution couldn’t have defined it because states had different definitions. My theory explains a puzzle: why the Constitution uses this term it doesn’t define, and whose common law derivation is controversial.
Now, the legal experts are going to look to the English Common Law for undefined terms in the Constitution (see Smith v. Alabama and Ex parte Grossman). That’s what lawyers are trained to do, but I say they are overthinking the problem, and as proof I keep coming back to the Naturalization Act of 1790. In that act, the Congress said explicitly that the children born of US fathers overseas were citizens. In the debate on that act, the argument was made that the United States should make provision for the children of its citizens born overseas, just has had the English centuries before. If it provides for someone, that means that the Act made people citizens at birth who were not citizens at birth before the Act. It means that these persons were not eligible to run for President when the Constitution was ratified. Nevertheless, that act called these new citizens “natural born citizens.” James Madison, principal author of the Constitution, was in that Congress, and George Washington, President of the Convention that produced the Constitution, signed it into law. Surely they understood that they were adding a new class of potential candidates for President.
If one applies the common law concept to the 1790 Act, all sorts of constitutional questions arise. If one applies the dictionary, there is no problem at all.
The plain English meaning of “natural born citizen” is anyone who is a citizen from birth. At different times in our history, the laws on who was a citizen from birth changed. The states originally defined it in various ways, the Congress defined it through various laws, and the Constitution nailed some of it down in the 14th Amendment. Whoever the law, statutory or common, says is born a citizen, that person is a natural born citizen.
One other mark of a crank is that they very stubbornly hold on to their theories, expecting other people to prove them wrong. Well?
The problem with public records
I got this “IMPORTANT BUSINESS CREDIT NOTIFICATION” envelope in the mail yesterday from Dun & Bradstreet:
They come every few months. I also get the occasional phone call from D&B asking me for details about my company, Hollow Tree Software. The letter said:
Another company has requested your credit file and we wanted to review your file with you.
I used to reply to these letters, and when someone called I told them the same thing: Hollow Tree Software has been out of business for 25 years. You can search various business sites and learn that:
- Hollow Tree Software was started in 2010 (it was actually ~1985)
- It had an estimated revenue of $92,000 in 2011 (it was $0).
- It is a software company (Hollow Tree manufactured computer cables and never sold software)
- It employs 2 people (it never had any employees)
I’ve called D&B and written them multiple times. They just keep sending letters and calling. It’s just marketing to them, and it’s just marketing to pretty much everyone in the public records business.
One might wonder just how this spurious record comes to exist, and I am fairly certain that I know that answer. Way back when I applied to the State of South Carolina for a retail license for that company, I also bought a business membership in Sam’s Club. That name is still on my Sam’s account along with my current address, and that is the only place in the world where I put Hollow Tree Software and my address together. Sam’s provided the data that has caused the annoyance. I’m guessing that they got 2 employees from the two Sam’s cards I have (me and Ms. Conspiracy), but the estimated revenue figure seems to have been pulled out of the air. Needless to say, I’m dropping my Sam’s Club membership.
I wrote about the fallacy of blindly trusting “system” outputs in my 2012 article, “The F.L.A.W.”
NRO: Faux left Cruz birthers
I get riled up by Conservative newspeak. This one from the National Review Online caught my eye, from an article Ed Whelan titled: Ted Cruz, Originalism and the “Natural Born Citizen Requirement.”
Here’s the offending bit:
I hadn’t seen any reason to comment on the left-wing “birther” attacks on Senator Ted Cruz’s eligibility to be president. Cruz was born in Canada in 1970 to a mother who was then an American citizen. Under the laws then in place, he was an American citizen by virtue of his birth.
Have you seen any “left-wing” birther attacks on Cruz’ eligibility? I haven’t. All I see is ultra-right nut jobs raising the same issue about Cruz that they raised about Obama. Whelan did find one article at The New Republic that talks about an inconsistency in Cruz’ origanalist way of interpreting the Constitution and his own eligibility, but this is not at all an attack on Cruz’ eligibility, but about his way of interpreting the Constitution. In fact, the New Republic article by Noam Scheiber makes it abundantly clear that Cruz is eligible, saying:
Is someone who was born abroad so obviously a natural born American? The consensus among legal experts appears to be, emphatically, “yes.”
I think it’s pretty clear that natural born is defined in such a way as to include everybody that has citizenship, and who got it other than through naturalization. So the fact that Ted Cruz had citizenship at birth, and he clearly did under the statute that applied at the time, it’s pretty clear that he qualifies as natural born.
The Conservatives would like folks to believe that presidential eligibility nuttery is an equal-opportunity employer with the right attacking Obama and the left attacking Cruz, but it ain’t so. The folks on the right are ones attacking both candidates, and the folks on the left are gleefully watching the folks on the right making fools of themselves.
I do take issue with Scheiber’s article, though. Members of the First Congress, many of whom were those folks who wrote the U. S. Constitution, passed the Naturalization Act of 1790 that explicitly made the children of U.S. Citizen fathers born overseas “natural born citizens.” It is abundantly clear from this Act that those founders understood that being born in the United States is not a Constitutional prerequisite for becoming President.
The National Review Online is not the only conservative news outlet trying to make liberals into birthers. Newsbusters touts an article: WaPo went “birther” on Cruz, But They’re Not Alone. The Washington Post article cited also concludes that Cruz is most likely eligible based on the authoritative report from the Congressional Research Service.
Zullo’s irrelevant affidavit
“Incompetent, irrelevant and immaterial!”
I try to put the best face on things, but I can’t think of any honorable reason for Mike Zullo’s affidavit (embedded at the end of this article) submitted in the case of McInnish v. Chapman to the Alabama Supreme Court. It is incompetent, irrelevant and immaterial.
The question before the Alabama Supreme Court is one of election law, and whether the Alabama Secretary of State has a duty to obtain documentation of candidates for President of the United States before placing them on the ballot or certifying votes for them. Generally courts of appeal decide questions of law, not questions of fact. The Alabama Supreme Court is not looking into the validity of Obama’s personal documentation but whether the lower courts were correct in dismissing the McInnish suit. (When a case is dismissed, questions of fact are not decided.) That is why the Zullo affidavit is irrelevant, being nothing but a collection of allegations against the President.
McInnish is being represented by counsel, and therefore it is known to him that the affidavit is irrelevant to the decision that the Alabama Supreme Court is deciding. If the affidavit is known to be irrelevant, then it is being submitted for another purpose, and it is patently obvious that the purpose is to publicize the allegations through the lawsuit, an improper purpose. While birthers make all sorts of unproven claims, it is beyond question that it is the birthers themselves who are guilty of all sorts of improper conduct (frivolous lawsuits, politically motivated lawsuits, and illegal access to federal databases just to name a few).
The latest Zullo affidavit begins with a bald-faced lie, saying that the information in the affidavit is based on his “personal knowledge.” For example, Zullo says that Mara Zebest is “contributing author and technical editor for more than 100 books on Adobe and Microsoft software.” That might be true, or it might not (I’ve never been able to find evidence that it is true), but in either case Zullo is not a publisher of books and has no personal knowledge of whether it is true or not. Zullo could never testify in court as to the qualifications of Zebest—he doesn’t have any personal knowledge of them.
Mike Zullo proves his incompetence in law enforcement matters by asserting that his affidavit is competent testimony admissible in court. It is a compilation of rumors, hearsay and inexpert conclusions.
Frank Arduini spent considerable effort exposing the previous Zullo affidavit as garbage, and this latest is in the same vein. What I think is going on here is an attempt to cover up the fact that Zullo keeps promising real results, and never produces them. This is just more noise, and submitting it with the McInnish appeal somehow makes it look like something “official.”
Thinking about the birthers
The photo (right) is of me next to the iconic statue of Rodin’s “The Thinker” at the Rodin Museum in Philadelphia. I posed for the picture with the title of this article in mind, but without a clear idea of when it would appear and what the article would actually say—that answer came last night as I was listening to the Reality Check Radio program when RC noted that there wasn’t much going on with the birthers these last two weeks. The birther movement has no successes to show, and some of the birthers still pushing forward are backing the craziest of the theories, and gaining no traction, even among other birthers.
For those who perhaps didn’t see it, I’ll repeat the pony story from last year:
There is a story about a little girl who was an optimist. The girl wanted a pony for Christmas and was confident she would get one. Her parents, thinking her optimism was so extreme as to be unhealthy, decided to cure her. On Christmas morning the little girl went outside to find a huge pile of manure with a bow on it. The girl grabbed a shovel and started digging frantically. When asked what she was doing, she replied: “with all this manure, there’s sure to be a pony here somewhere.”
You really have to give some of the birthers credit for optimism, having dug in the manure pile saying “any day now” for 5 years. How many times has Mike Zullo promised to produce the real evidence from his investigation? Remember Jerome Corsi’s “mole” in the Hawaii Department of Health? Remember Donald Trump’s investigators finding unbelievable things? How many lawsuits have been “the one?”
Today the birther’s irrational hope is the Alabama Supreme Court. That Court already rejected McInnish’s first case unanimously. Has he somehow magically obtained standing now? Roy Moore or not, this case will go down the tubes just like all the rest, but it’s the birther pony hope du jour.
So, is blogging about birthers as pointless as the birthers themselves? Certainly any effort geared at “curing” the birthers is pointless. That’s a hope I don’t think I ever had from the beginning of the blog. What I think is not pointless is documenting for posterity this curious appendix to the presidency of Barack Obama, and that’s why I take some extra effort to make the blog a useful research tool. Some have suggested that I write a book. I already did, and you’re reading it. It’s an interactive media project, and I’m glad you’re a part of it.
Whack-a-doodle-doo
I’ve designated few if any electrons to the Guthrie v. United States lawsuit. If you’ve seen one birther lawsuit, you’ve seen them all, and you know what’s going to happen to them.
Judge Barker has ordered the case dismissed in the US District Court for the Southern District of Indiana. This was a re-filing of a previously dismissed suit. The Jedi Pauly website discusses the case, but not the most recent dismissal.
Read the dismissal:
