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Another question for Mario Apuzzo (3)

If born in the United States, is President Obama a citizen of the United States?

Mr. Apuzzo, when commenting on this blog, has bristled at any suggestion that he was attempting to overturn US v Wong, so I wonder if he would concede this small point.

(I know that he cannot say that Barack Obama was born in the United States, since that would invalidate most of the argument in Kerchner v. Obama, so I put the question in the hypothetical.)

,

148 Responses to Another question for Mario Apuzzo (3)

  1. avatar
    misha September 13, 2009 at 4:38 pm #

    I’ll answer the question for him:

    Barack Obama is a native born citizen, but not a natural born citizen. Therefore, he cannot be president.

    A natural born citizen requires both parents be citizens, at the time of birth. This is not explicitly stated in our Constitution, but it is in the writings of a Swiss philosopher named de Vattel. Thomas Jefferson had this book in his library.

    Also, Justice Taney’s 1857 decision precludes a black man from becoming president.

  2. avatar
    John September 13, 2009 at 5:39 pm #

    I think it is reasonable to conclude a “Natural Born” citizen is one born on US Soil to parents who are US Citizens.

    “Natural Born” implies that NO law is needed or required to determine if a person a citizen of that country.

    By Natural Law and the Natural Order of things a person who born in a country of its citizens (parents) is a citizen of that country.

    There can never been any doubt to that fact and no law is needed to define of clarify that fact – Hence to person is a “Natural Born” citizen.

  3. avatar
    jtx September 13, 2009 at 5:42 pm #

    misha:

    It should be abundantly clear that Obama may or may not be a citizen of the US. Information to date that can be reasonably confirmed do not give an answer to that.

    Nor does your crowd! Let’s just see the man prove he is eligible to hold the office he now occupies (and it doesn’t call for just being a citizen).

  4. avatar
    John September 13, 2009 at 5:42 pm #

    It could be that the reason why “Natural Born” citizen was not defined was because it is Natural Law and no statute or law is needed to define it. The only condition this could include is that the person was born in that country to parents who are citizens of that country. Even if we are to assume that “Natural Born” only meant “Born in the country” it is still open to lawful interpretation because we have seen that children of ambassadors cannot be “Natural Born” even if born in the country. But in Minor Vs. Happersat, the court said that there is no doubt a person born in the country to citizens of that country is “Natural Born”. Nonetheless, doubt is established when one simply implies “Natural Born” as simply being born in that country thus requiring some lawful interpretation. A person who a “Natural Born” citizen does not require any lawful interpretation.

  5. avatar
    jtx September 13, 2009 at 5:46 pm #

    John:

    And remember that Obama has already admitted through all of his various intermediaries and apologists (and his own writings) that he was born a Brit.

    How could a person governed at birth by the laws of another country be a natural born citizen of this country?

    Why does he not simply prove that he is eligible to hold the office he now occupies? Perhaps he can’t – and realizes it?

  6. avatar
    Bob September 13, 2009 at 5:49 pm #

    Now just find a court case where that was actually said, and you’ll be set.

  7. avatar
    Bob September 13, 2009 at 5:51 pm #

    It could be that the reason why “Natural Born” citizen was not defined was because it is Natural Law and no statute or law is needed to define it.

    Kind of like how the unspeakable crime against nature need not (and could not) be defined?

  8. avatar
    nbc September 13, 2009 at 6:42 pm #

    That’s begging the question. We already know that jus soli, has been part of common law for hundreds of years. Jus soli, certainly from a feudal society was quite logical, and of course, in case of a country based on immigration, unavoidable.

    John: I think it is reasonable to conclude a “Natural Born” citizen is one born on US Soil to parents who are US Citizens.

  9. avatar
    nbc September 13, 2009 at 6:43 pm #

    As the US courts have ruled, when the terms in the Constitution have not been defined, they are taken to be commonly known through Common Law.

  10. avatar
    elmo September 13, 2009 at 7:13 pm #

    To the hapless individual who thinks that the Dred Scott decision precludes Obama from being president: I strongly suggest you take a community college course in U.S. citizenship and ask the teacher to explain to you about the 14th Amendment to the United States Constitution. Your confusion about this subject is far to deep to be corrected over the internet. Good luck to you.

  11. avatar
    SFJeff September 13, 2009 at 7:19 pm #

    John I could quibble with you about what is ‘reasonable’ but what about Doc’s original question- assuming President Obama was born in the United States do you think he is a citizen?

  12. avatar
    kimba September 13, 2009 at 7:32 pm #

    Misha forgot to attach the snark tag to his comment. He was being sarcastic. You are exactly right about the 14th amendment, elmo, and misha knows it too. As far as *correcting* misha, well, Mario tries and tries, but even he can’t get misha straightened around.

  13. avatar
    nbc September 13, 2009 at 7:53 pm #

    love them myths

  14. avatar
    richCares September 13, 2009 at 7:58 pm #

    Believing made up garbage like “new divorce papers from 1964 includes his original Kenyan Birth Certificate” is quite easy for a birther, hate for Obama makes them brain damaged and/or retarded. And you know they won’t ask for verification. This silly story appears to have been invented by AJX to get web hits.

  15. avatar
    kimba September 13, 2009 at 8:00 pm #

    Hi Sven!

  16. avatar
    nbc September 13, 2009 at 8:18 pm #

    I looked at the ‘evidence’ which is based on pure speculation and a ‘missing’ page 11. Since the judge’s order clearly states that child support is not addressed until raised by the Libelant, it is unlikely that a birth certificate had been requested and provided

  17. avatar
    dunstvangeet September 13, 2009 at 11:06 pm #

    You do know that it’s actually user derived things that are determining whether or not your thing is displayed.

    Each person has a vote. Too many negative votes, and not enough positive votes, means that your content isn’t shown.

  18. avatar
    Dr. Conspiracy September 13, 2009 at 11:20 pm #

    Obama was born in the United States, to a US Citizen mother and a British father.

    If you had to choose one word to describe Obama’s nationality, “Brit” is not a word I could understand being made by a rational, or fair-minded person.

    I think you should spend tomorrow on the pillory.

  19. avatar
    Dr. Conspiracy September 13, 2009 at 11:24 pm #

    The problem with your “Natural law” definition, is that Natural Law, in reality, is just a reflection of the prejudices, mores, taboos and conventions of whoever writes about natural law. Many writers, de Vattel only one, wrote about natural law. Such variety could never form the basis of a “definition”. Common Law, however, is a well understood collection of case law that was in effect at the time of the ratification of the Constitution.

    While some writer’s view of natural law may have influenced legislation and perhaps on occasion influenced a judge when there was NOTHING ELSE TO RELY ON, it was not the basis for interpreting the Constitution, or so said the Supreme Court of the US in the case, Smith v Alabama.

  20. avatar
    Mario Apuzzo September 14, 2009 at 2:40 am #

    Dr. Conspiracy,

    1. Wong Kim Ark is bad law and the U.S. Supreme Court (under Justice Scalia’s three-part test for overturning decisions) should overturn it.

    2. Even if the U.S. Supreme Court would not overturn it, Obama is not a U.S. “citizen” under its unique facts.

    3. Even if Obama is declared a “citizen” under Wong Kim Ark, he still is not an Article II “natural born Citizen.”

    4. Kerchner raises two issues:

    a. Has Obama conclusively proven he was born in the U.S.? No.

    b. Assuming Obama has conclusively proven that he was born in the U.S., can he be an Article II “natural born Citizen?” No.

    Mario Apuzzo, Esq.

  21. avatar
    nbc September 14, 2009 at 2:46 am #

    1. Wong Kim Ark is bad law and the U.S. Supreme Court (under Justice Scalia’s three-part test for overturning decisions) should overturn it.

    2. Even if the U.S. Supreme Court would not overturn it, Obama is not a U.S. “citizen” under its unique facts.

    3. Even if Obama is declared a “citizen” under Wong Kim Ark, he still is not an Article II “natural born Citizen.”

    Wow, seems you have a tough ride ahead of you. After all, the fact that any child born on US soil is a citizen is well established in US law.
    To claim that there exists a ‘special category’ of US citizens, called natural born is even farther fetched.

    I do understand that you have to perform for your client but this seems somewhat ridiculous… Even though Wong Kim Ark has been cited many times by SCOTUS, you consider it ‘bad law.

    Wow wow.

    Good luck my friend

  22. avatar
    dunstvangeet September 14, 2009 at 2:59 am #

    1. So, you are arguing for an overturning of Wong Kim Ark, Mario. You believe that it’s not only Natural Born Citizens, but all citizens, who must be born to 2 U.S. Citizen Parents. Simple birth under the jurisdiction of the United States is not enough, despite the Fourteenth Amendment.

    2. What sort of unique circumstances does Obama have, to where if he was born in the United States, he would not be subject to the jurisdiction? Surely you’re not suggesting that he had diplomatic immunity? Are you suggesting that Obama was born as the child of a invading army, in occupied territory? Those are the two well established exceptions that Wong Kim Ark laid out to the anybody born in the United States rule. Are you saying that Barack Obama Sr, when he was a student, could have pulled a Virginia Tech, and the most he’d get was deported back to Kenya?

    3. I’ll leave this one alone, since it was not the purpose of the question.

    4. a. Yes, he has proven conclusively that he was born in the United States to the satisfaction of the Federal Government. The birth certificate that he has released is used by the Federal Government to prove the place of birth for things such as Passports, and Driver Licenses. I see absolutely no reason that it wouldn’t be used to prove place of birth on anything else.

    b. Again, I’ll leave this one alone…

  23. avatar
    Chris September 14, 2009 at 5:51 am #

    Even if he trots out a lame argument, you gotta give Mr. Apuzzo credit for responding promptly.

  24. avatar
    Greg September 14, 2009 at 6:54 am #

    Regarding 2 – Even if you accept that Wong requires the parents to be permanently domiciled in the United States what in the case makes you think that the case required both parents to be permanently domiciled in the United States.

    There was not a single word in the case that could be used to support the view that the case is limited in such a way that the child of a mother who is a US citizen could not be a citizen! Remember, the case completely rejected the notion that citizenship follows the father’s condition.

  25. avatar
    Greg September 14, 2009 at 7:17 am #

    1. Wong Kim Ark is bad law and the U.S. Supreme Court (under Justice Scalia’s three-part test for overturning decisions) should overturn it.

    Actually, I don’t think Wong meets any of the three Scalia tests. Scalia’s test from your website:

    how wrong was it, i.e., was it blatantly and malicious improperly decided ; how well has the public accepted the case; and did the decision cast the Court as a policy maker rather than an interpreter of the law.

    1. Was it blatantly and maliciously improperly decided – The decision is 70+ pages, right? It has been cited more than 300 times by courts since. Law professors don’t feel a single second of pause when they write that it is settled law that someone born here in the United States is eligible to be President. It’s certainly not blatantly wrong. Even many of the scholars who think it shouldn’t apply to illegal aliens acknowledge that it is correctly decided.

    2. How well has the public accepted the decision? The proof is in the pudding – 64 million Americans voted for Obama, knowing his father was never a citizen! I’d guess that the vast majority of Republicans who doubted his eligibility at the time of the election did so because of doubts about his place of birth, not his father’s citizenship.

    3. “did the decision cast the Court as a policy maker rather than an interpreter of the law” – Wong didn’t create a new regulatory structure the way that Roe v. Wade did. Look at the dozens of cases the court cited, the decision certainly casts the court as an interpreter of the law. You seem to imply that any judicial decision that overturns a legislative action is bait for Scalia’s test. Surely Scalia doesn’t intend this test to sweep up all cases that overturn Congressional legislation, but those that create new regulatory structures.

  26. avatar
    Dr. Conspiracy September 14, 2009 at 7:34 am #

    It is clear from the Congressional debates over the 14th amendment that the Wong decision upheld the intent of Congress. It didn’t make policy; it prevented the Administration from flouting it the Constitution.

  27. avatar
    Dr. Conspiracy September 14, 2009 at 7:46 am #

    OK, I’m glad you’ve finally admitted (despite previous denials) that you’re trying to overturn Wong. I knew all along that you had to go there as a logical consequence of your argument.

    I am not, however, quite sure of the answer to my question. Could you pick from the following:

    1. Yes
    2. No
    3. Unsure

    ?

  28. avatar
    Greg September 14, 2009 at 7:51 am #

    Indeed. We know that every time Congress discussed the Chinese, it was made clear that their children would be made citizens, both by the Amendment as well as by the 1866 Civil Rights Act. The President vetoed the Civil Rights Act, in part, because it would make citizens of the children born here of Chinese people (and gypsies).

  29. avatar
    thisoldhippie September 14, 2009 at 8:17 am #

    Am I just an idiot, or what? (I know that this is a question that certain trolls will just love to answer in the affirmative). It has always been taught to me and understood that if a person is born in the US then they are a citizen by birth – which makes them a natural born citizen. That is why the child of an illegal alien born on US soil cannot be deported even if the parents can. That child is a citizen by birth (NBC) and is entitled to all of the rights and privileges of this country and can run for President if he/she chooses.

  30. avatar
    Black Lion September 14, 2009 at 9:58 am #

    So JTX, the fact that President Obama’s mother was an American citizen and he was born in the US mean anything? In all of your discussions you never acknowledge that his mother was an American. So do you believe that citizenship is only predicated on the father and not the mother? Because your theory loses any kind of merit that “he was born a Brit” or “subject to the BNA” becuase at worst he would be subject to both US and British/Kenyan laws at birth.

    A lot of people that are on the fake “two parents must be US citizens” argument never address the fact that his mother was an American. When they quote de Vattel who never addresses the issue about if one parent is an American citizen, they usual forget that he is not the child of foreigners either. Nor does the SCOTUS monority opinions or rulings that the birthers like to reference address the fact of one parent being an American citizen.

    There seems to be nothing that addresses the one parent being an American citizen issue. It is just curious how that fact is rarely mentioned.

  31. avatar
    kimba September 14, 2009 at 10:02 am #

    I can assure you hippie, you are not the idiot. You remember your civics. Challenge a birther to go over to the junior high and pick up a civics text. They never do. The smarter ones know it as well as you do what they were taught. The less smart ones just go along with whatever they think might disqualify Obama.

  32. avatar
    kimba September 14, 2009 at 10:06 am #

    Don’t forget, the birther fantasy America, the “America they know and love” is really the South of the 1850s. The only true citizens were white, male landowners. Women were slightly above chattel by then but blacks were only 3/5 human.

  33. avatar
    Greg September 14, 2009 at 10:39 am #

    How could a person governed at birth by the laws of another country be a natural born citizen of this country?

    Because who is a natural born citizen of this country isn’t determined by whether someone is governed at birth by the laws of another country!

    It’s like asking, “How can someone who likes vanilla be a natural born citizen of this country?” “How can someone be a natural born citizen of this country if the price of tea in China is the equivalent of $2.25 per pound?!?”

    It’s irrelevant, jtx.

    Here’s the equation:

    1. Was he/she born here? If yes, continue:
    2. Were either of his/her parents the sovereign of another country? If no, continue:
    3. Were either of his/her parents the ambassador of another country? If no, continue:
    4. Were either of his/her parents part of an invading army? If no, continue:

    You are a Natural born citizen!

    See, at no point do you ask “do other countries consider you a citizen, too?”

    It’s not a complete flow-chart, since you can be a natural born citizen, but born abroad, like McCain. And, 2, 3, and 4 may present some fun issues in the future for the estranged children of those folks born here to one person in that category and a US citizen. But, not for Obama.

  34. avatar
    Lupin September 14, 2009 at 12:03 pm #

    I naively thought that I had thoroughly debunked the “born from two parents who are citizens” (as opposed to one), at least as originating with Vattel — in fact, a misreading of Vattel.

    What is the point of doing exacting research if Apuzzo is still using (now, knowingly) false information?

  35. avatar
    kimba September 14, 2009 at 12:09 pm #

    Lupin, you can debunk until the cows come home. Birthers never drop anything, even when it has been debunked. Apparently the case still maintains there was a travel ban for US Citizens to Pakistan in 1981. That one was debunked too. With real State Dept documents from the time. Doesn’t matter. If Mario didn’t have the “twofer” theory, he wouldn’t have a case left.

    It doesn’t change the fact that your explanation of Vattel’s French “children of citizens” was very compelling and the best explanation I’ve ever read.
    “Children of employees are admitted to the picnic free.” Group plural. Excellent.

  36. avatar
    dunstvangeet September 14, 2009 at 12:12 pm #

    Doesn’t matter, Blacklion.

    According to birthers, any child of rape should have to prove that their rapist father, who has never been in their lives, is a U.S. Citizen. If the rapist was never caught, that means that he can’t prove that he’s a Natural Born Citizen, and therefore he’s not eligible for the Presidency.

    It should also fall to anybody with a foreigner pool boy who was employed by their parents at the time of their birth. How can they prove that they’re not a product of an affair, rather than the product of their marriage? If they can’t prove it to the satisfaction of me, that means that they’re not eligible for the Presidency.

    Also, anybody born to a mother who doesn’t know who the father is can’t prove that their father was a U.S. Citizen, because they don’t know. Therefore, they’re ineligible.

    Don’t you understand that this is really the things that they’re after! How dare we ever get a product of an uncaught rapist in the White House!

  37. avatar
    dunstvangeet September 14, 2009 at 12:13 pm #

    Don’t you know how dangerous it is for us to have the product of an uncaught rapist in the White House? This is the real reason for a 2-parent rule! We must keep these people out of the White House!

  38. avatar
    Lupin September 14, 2009 at 12:15 pm #

    Not only is the “twofer” theory (I like that term) explicitedly NOT in Vattel, in fact the opposite, there also remains that “naturel” is a noun, NOT a qualification of citizen, and further “jus soli” is acknowledged as an alternate system employed by Great Britain.

    At this point, any “good faith” birther (ha ha ha!) should stop relying on Vattel.

  39. avatar
    Lupin September 14, 2009 at 12:17 pm #

    There is NO two-parent rule. It’s either a bona fide misunderstanding of Vattel or a fabrication.

  40. avatar
    dunstvangeet September 14, 2009 at 12:19 pm #

    But what about those children of uncaught rapists?!?!?! We must keep them out of the White House. They’re a dangerous breed that will destroy the very fabric of America!

  41. avatar
    kimba September 14, 2009 at 12:42 pm #

    Are you saying birthers believe the relationship between Barack Obama Sr and Ann Dunham was not consensual? Yikes. That’s out there.

  42. avatar
    kimba September 14, 2009 at 12:43 pm #

    “good faith birther” that’s like jumbo shrimp.

  43. avatar
    SFJeff September 14, 2009 at 12:59 pm #

    With the twofer arguments, I keep waiting for the logical extension- the only way to prove who a candidates parents are for purposes of determining NBC status are DNA tests.

    And what if his mother was one of identical twins and the other twin had different citizenship- I don’t think you could ever ‘prove’ to birther standards(hah!) whether the mother was a citizen or not.

    I can see now during the next Presidential debates: “I have provided my DNA, and my parents DNA for testing, why hasn’t my esteemed rival?”

  44. avatar
    SvenMagnussen September 14, 2009 at 1:01 pm #

    Greetings to all my fans, stalkers, cyber-friends and haters.

    I’ve been away for a week. It was an exciting trip. I got cheap gas in South Carolina; I ate at Bogangles and even cheaper gas at the Murphy’s USA in front of Walmart.

    I was able to get in touch with my inner-communism last week when I borrowed my neighbors wireless internet connection to check for updates on the Attack on the US Constitution. It’ll be hilarious when the Brownshirts bust down my neighbors door for being a “Birther.”

    I hope you’ve enjoyed reading this message as much as I have enjoyed writing it. Please vote accordingly.

    Thank you and have a nice day!

  45. avatar
    kimba September 14, 2009 at 1:04 pm #

    I have actually seen this discussed Jeff. I read on plainsradio comments that someone somewhere claims to have Madelyn Dunham’s, Ann Dunham’s and Pres Obama’s DNA. That Madelyn is really Barack’s mother and that the paternal half of the DNA is not from someone of East Afrian descent. I kid you not. I think even identical twins have discernable differences in their DNA. No two of us are completely alike! ( thank goodness)

  46. avatar
    thisoldhippie September 14, 2009 at 3:17 pm #

    yep – they sure need to be kept out of the white house – and all of our politics for that matter!

    kimba: Are you saying birthers believe the relationship between Barack Obama Sr and Ann Dunham was not consensual? Yikes. That’s out there.

  47. avatar
    thisoldhippie September 14, 2009 at 3:18 pm #

    actually, the only people being raped are those that donate money and time and emotion to these “attorneys” who are either dishonest or too stupid to understand the law.

  48. avatar
    Black Lion September 14, 2009 at 3:19 pm #

    This is from a commentor at Mario’s site…

    Blogger sjc said…

    I was in Senator Cornyn’s offices 9/11/09 meeting with a couple of his staffers on the issue of Art II eligiblity. (BTW they were unaware of being named in Kerchner v Obama). I was there asking for a senate investigation and a Writ of Quo Warranto. His staffers had never heard of Quo Warranto.

    “Robin” didn’t know the difference between a 14th amendment naturalized citizen and an Natural Born one. 2 US citizen parents and US soil. She told me it only took one US parent citizen, but that she knew about jus soli and jus sanguini.

    I tried a different approach, I asked her if she heard about the founders placing importance on undivided allegiance. She commented she was well aware of that fact. So I asked her in the context of Art II Sec I, weren’t the founders referring to two US citizen parents, otherwise there would have been no need for the word “undivided” allegiance and they could have just said allegiance if they were telling us one US citizen parent would suffice.

    I also went over to Sen Hutchinson’s office. One of her senior staffers remarked “Alexander Hamilton was born in the West Indies and wasn’t NBC and ineligible to run for POTUS.” I corrected him by explaining the grandfather clause for the charter members of the Revolution.

    What this is pointing out is the stupidity in our government at the highest levels. Our very elected officials don’t even understand our Constitution. These staffers speak for their senators, and advise them on talking points, yet they are clueless about the Supreme Law of the Land.

    I told “Robin and Emily” in Cornyn’s offices that my visit was as effective as talkng to the wall. I asked were they afraid of rioting? Which they replied “no” then I asked if they were afraid of revolt, because that was coming if they didn’t stop sitting on their hands. While I was discussing this two other groups of Texans entered the offices and to a man agreed with me Obama hasn’t proven his eligibility.

    Mario and Charles, is very obvious the courts will have to save us or we will have to revolt. Our government is corrupt through and through.

    As far as the 9/12/09 DC march anybody that says 10s of thousands are just as clueless as the people mentioned above. for three hours Pennslyvania Ave was full of marchers from the White House all the way to the Capital (1.2 miles long and 9 lanes wide). There were those who waited at the Capital that didn’t march, in the hundreds of thousands. People joined the march midway right off the Metro terminals and other points. A twenty year veteran DC policeman said it was bigger than Obama’s 1.8 million inauguration day, bigger than any gathering he had ever witnessed in his career.

    Once you read this comment, you realize that these are the people we are dealing with…Like this comment ““Robin” didn’t know the difference between a 14th amendment naturalized citizen and an Natural Born one”. What is a 14th amendment citizen? Is this an invention by Mario? I know the US Constitution designates on 2 types of citizens. So there are people out there that actually believe in Mario’s crackpot theory. Of course the rest of the comment doesn’t get any better.

    In other words as much as Mario’s theory is debunked, especially with the translation by Lupin, he will continue to have people that will follow and believe in what he is saying. The birthers are an interesting bunch.

  49. avatar
    dunstvangeet September 14, 2009 at 3:53 pm #

    If you didn’t know, I was being scarcastic. I was taking their logical assumption to the extreme. If they’re saying that only a child that is born to two parents is a Natural Born Citizen, then obviously, the child of someone who was born out of rape, cannot be a Natural Born Citizen, unless the rapist is known, and is a U.S. Citizen. Otherwise, how do we know whether or not this person is the child of 2 U.S. Citizens, if we do not know one of the parents.

    Sorry, thought my scarcasm would come through…

    *mutters something about the non-implementation of a tag*

  50. avatar
    Greg September 14, 2009 at 4:28 pm #

    The racists and tax avoiders like to talk about preamble citizens and 14th Amendment citizens. See, for example, US v. Greenstreet (ND Tex 1996) 912 F.Supp 224 (claiming to be “of the White Preamble Citizenship and not one of the 14th Amendment legislated enfranchised de facto colored races”) ditto US v. Kettler (10th Cir unpub 6/3/91) 934 F2d 326(t); ditto (claimed that “By my birth in California of parents not subject to the incapacity of race, I am in law and fact, politically free by birth, libertas. Thus, with respect to 14th amendment citizenship, I am alien and with respect to 14th amendment residency [which does not appear in the 14th Amendment!], I am nonresident and with respect to both I am nonresident alien.” “Petitioner’s arguments are no more than stale tax protester contentions long dismissed summarily by this court and all other courts which have heard such contentions.”)

    I give you ADL’s idiot legal arguments

  51. avatar
    Bob September 14, 2009 at 4:45 pm #

    Of course, tax protestors usually claim that they are not citizens under the 14th Amendment (to avoid paying income taxes and not acknowledge the power of the federal courts).

  52. avatar
    kimba September 14, 2009 at 5:00 pm #

    I caught the sarcasm. Sometimes other people don’t. I learned it the hard way, now I declare it’s snark.

  53. avatar
    kimba September 14, 2009 at 5:01 pm #

    HA! That gets a BIG thumbs up!

  54. avatar
    Mario Apuzzo September 14, 2009 at 5:02 pm #

    What is so difficult in understanding that we have (1) Article II “natural born Citizens,” (2) Article I, II, III, and IV “citizens,” (3) 14th Amendment born “citizens” and naturalized “citizens,” and (4) statutory born “citizens” and naturalized “citizens.” What is so “crackpot” about this description of American citizenship as developed from the Founding to the present?

    Mario Apuzzo, Esq.

  55. avatar
    Greg September 14, 2009 at 5:04 pm #

    That’s sort of what they’re doing here, too. They’re saying that Obama is a 14th Amendment citizen, but not a “natural born citizen.”

    There’s an article that touches on the issue, 8 Cardozo Stud. L. & Literature 65 (1996) “When Law Risks Madness;” Koniak, Susan P.

  56. avatar
    Greg September 14, 2009 at 5:09 pm #

    Why stop there? If we’re creating types of citizenship that have no support in the caselaw and have never been mentioned as distinct categories by the founders, why not:

    1. Martian citizens.
    2. Citizens with funny hats
    3. Citizens without portfolio
    4. Citizens I just don’t like and so shouldn’t be allowed to be President

  57. avatar
    ballantine September 14, 2009 at 5:12 pm #

    “Wong Kim Ark is bad law and the U.S. Supreme Court (under Justice Scalia’s three-part test for overturning decisions) should overturn it.”

    The arguments for over-turning Wong are pretty weak. Mostly cherry-picking a few quotes and ignoring most of the legislative history. Scalia, of course, is not interested in legislative history anyway.

    “Even if the U.S. Supreme Court would not overturn it, Obama is not a U.S. “citizen” under its unique facts.”

    More silliness, the court limited its holding to the facts before it like it almost always does. The holding was based on it’s conclusion that the 14th amendment was declaratory of the English common law and there was no requirement for someone be a resident or domicile under the common law.

  58. avatar
    Greg September 14, 2009 at 5:19 pm #

    Can you show me a single founder who imagined that someone could be born here and not be eligible for the Presidency?

    How about a single Congressman or Senator during the debate about the 14th Amendment who thought that someone could become a citizen by birth under its operation but not be eligible for the Presidency?

    Of course you can’t. The closest you can come is to say that Vattel said it, and Vattel was influential on other issues unrelated to citizenship and some founders had read Vattel. Oh, and the Dutch were influential on issues unrelated to citizenship and Dutch law, well, doesn’t have this third category of citizen, but does have jus sanguinis citizenship, and isn’t that enough?

  59. avatar
    ballantine September 14, 2009 at 5:23 pm #

    “What is so difficult in understanding that we have (1) Article II “natural born Citizens,” (2) Article I, II, III, and IV “citizens,” (3) 14th Amendment born “citizens” and naturalized “citizens,” and (4) statutory born “citizens” and naturalized “citizens.” What is so “crackpot” about this description of American citizenship as developed from the Founding to the present?”

    The problem is you cite no authority to back your claims or cite authority that doesn’t stand for what you say it stands for.

  60. avatar
    Greg September 14, 2009 at 5:25 pm #

    The arguments for over-turning Wong are pretty weak. Mostly cherry-picking a few quotes and ignoring most of the legislative history.

    It’s actually worse than that. They cherry-pick the same few quotes that the losing side cherry-picked in Wong! So, the majority of their argument is warmed over BS the court explicitly rejected!

  61. avatar
    kimba September 14, 2009 at 5:25 pm #

    Crackpot, I don’t know, an attempt to make citizenship more exclusive, absolutely. Why try to divide those who were born here into narrower categories of citizenship other than to exclude groups you don’t like? In some eras it was blacks, then it was the Chinese, today it’s the Hispanics and the Muslims who people want to separate as “not really citizens.” If you start excluding, where do you stop? Why not just insist that the only true Natural Born Citizens are white, male landowners who are born of parents each of whom can trace their lineage to the Revolution. The progression of citizenship law from the Founders through to WKA has been to make citizenship more inclusive. I believe in our children’s lifetimes we will see an amendment to the constitution that allows naturalized citizens who have been citizens X years to be eligible to be President. The trend is toward more inclusive. What you propose is a giant step backwards.

  62. avatar
    nbc September 14, 2009 at 5:28 pm #

    Yes, which is why I am working on making the arguments from the losing side available. Would be fun…

  63. avatar
    nbc September 14, 2009 at 5:39 pm #

    It’s just that it lacks a foundation in both scholarship, legal precedent.
    The clear facts show that there are two classes
    aliens and citizens and that there are two kind of citizens: native/natural born (naturalized at birth) and naturalized.

    Anything else is just wishful thinking.

  64. avatar
    misha September 14, 2009 at 6:35 pm #

    “I believe in our children’s lifetimes we will see an amendment to the constitution that allows naturalized citizens who have been citizens X years to be eligible to be President.”

    I owe an apology to DrC. After reading the vitriol aimed at President Obama, I have changed 180°. I now support such an amendment. Kissinger and Albright have been given the highest level clearance. Why could they not be trusted with the presidency?

  65. avatar
    BlackLion September 14, 2009 at 6:53 pm #

    As many have said here before Mario there is no case law to support your theory. The laws you do cite do not explicitly state what you claim. As a matter of fact the United States Constitution does not even make the distinction of different “Article citizens” that you do. Mario, you just have an interpertation of the Constitution and SCOTUS rulings that no other legal scholar agrees with. That is why some think that it is a “crackpot” theory.

  66. avatar
    Mario Apuzzo September 14, 2009 at 7:03 pm #

    Kimba,

    You are stuck on you hate stuff. Liberate yourself. You do not understand what a “natural born Citizen” is. It only applies to being President. I did not make the rule, the Framers of the Constitution did. Also, there is absolutely nothing discriminatory about it. It represents the majority of Americans, no matter what their color, race, or religion is.

    Mario Apuzzo, Esq.

  67. avatar
    misha September 14, 2009 at 7:12 pm #

    Have you ever thought of a career as a comedy writer?

  68. avatar
    BlackLion September 14, 2009 at 7:25 pm #

    Yes Mario…However the founders never defined what a “natural born Citizen” was. You attempt to use dissenting opinions in SCOTUS cases and De Vattel in order to support your theory regarding 2 parents have to be citizens. This is not in the US Constitution and you mis-translate De Vattel in order to support this theory. And the only legal scholar you could find that supports your theory (Collins) was the losing lawyer in the Wong Kim Ark case.

  69. avatar
    kimba September 14, 2009 at 7:31 pm #

    I understand perfectly well what is a Natural Born Citizen. It is anyone who was born here who is not a child of a diplomat or invading soldier. It has nothing to do with parentage. There are born citizens and naturalized citizens. There is no special category called “Natural Born Citizen”. I stand by what I said: Our laws have evolved to become more inclusive, you are suggesting we fall back to something exclusive. I think you’re wrong. Prove me wrong. No theories, no Vattel, no quotes from losing side’s arguments in old cases, cite case law and where the Constitution supports your position.

    I don’t think you’re a hater, Mario, I think you’re representing your client. But I have read the comments by many of the birther/twofer persuasion that want to find something, anything that disqualifies Obama because they don’t want a black man in the White House. It’s hard not to lump you in with them because your case supports their ideas.

  70. avatar
    misha September 14, 2009 at 7:34 pm #

    “That is why some think that it is a “crackpot” theory.”

    I’ll have you know the correct term is “psychoceramic.”

  71. avatar
    Greg September 14, 2009 at 7:35 pm #

    Also, there is absolutely nothing discriminatory about it. It represents the majority of Americans, no matter what their color, race, or religion is.

    Come on! You’ve got to realize how stupid this sounds!

    It’s not discriminatory if it applies to the majority of Americans? Like the anti-miscegenation laws?

    The Supreme Court has ruled that alienage status is a protected classification deserving of strict scrutiny. They have ruled that national origin is a protected classification deserving of strict scrutiny.

    What possible rationale can you give for thinking that parental alienage status at the time of birth wouldn’t also be a protected classification deserving of strict scrutiny?

    I’m still waiting for a citation to a single founder, or writer of the 14th Amendment who imagined that someone could be born here, become a citizen by right of their birth here and still not be eligible for the Presidency. You claim the founders were clear in creating at least two distinct categories of citizen who got their citizenship by birth. Show us where.

  72. avatar
    nbc September 14, 2009 at 7:44 pm #

    That’s the problem, only in some dissenting opinions can Mario find support for his claims, and when it comes to opinions which disagree with his thesis, he wants them, no needs them to be overturned.

    Fascinating

  73. avatar
    Mario Apuzzo September 14, 2009 at 11:16 pm #

    Greg,

    Your arguing that my test, i.e., born in the country (jus soli) to a U.S. citizen mother and father (jus sanguinis) is a “natural born Citizen,” creates a discriminatory classification and is violative of equal protection is just as unfounded as if you argued that not allowing naturalized citizens to be President is such a violation. You assume that selecting “natural born Citizens” by whether they are born in the country to both U.S. citizen mothers and fathers is invidious discrimination against a suspect class, those identified by alienage or nationality. I do not see how such a test disadvantages any such class. My test for “natural born Citizen” status simply does not unfairly create any disadvantaged class.

    You also incorrectly assume that being allowed to be eligible to be President is a fundamental constitutional right. There is no validity to your assumption, for the Constitution does not explicity or implicity guarantee to anyone the substantive right to be President of the United States nor are there any constitutional underpinnings to such an alleged right. The fact that someone might want to aspire to be President does not elevate eligibility to be President to be a constitutional fundamental right. On the contrary, being eligible to be President is a political privilege given by the Constitution to those who meet the qualifications of Article II to be president.

    All these incorrect assumptions lead you to apply strict scrutiny (compelling government interest) rather than some other more deferential test (does my unity of citizenship test for “natural born citizen” status bear a rational relationship to a legitimate government purpose) to the subject at hand. Even if we were to apply strict scrutiny analysis rather than a more deferential standard, do you believe that protecting our national interest per the Founder’s vision would not pass the compelling government interest test? Do you really believe that there is anything fundamentally inconsistent between my unity of citizenship test for Presidential eligibility and the test the Founders established for the President and Commander in Chief of the Military? My test meets both strict scrutiny and rational basis scrutiny. The Founders wanted to make sure to keep foreign influence out of the Office of President and Commander in Chief. We know from studying our own and international legal precedents that citizenship produces allegiance. Preserving the national security, safety, and best interests of the United States is a compelling government interest. Making sure a would-be President has attachment and allegiance from birth solely to the United States is a means by which the nation can assure itself that the person to be President will, indeed, have the survival of the nation as currently constituted at heart. Requiring that a would-be President be born in the country to a U.S. citizen mother and father assures that from birth that person has sole and abolute allegiance to the United States. Making sure the person to be President has sole and absolute allegiance to the United States and is free of foreign influence to the greatest degree possible is a reasonable means of securing the safety and interests of the United States?

    The “natural born Citizen” clause as I define it is no different from Article II’s requirements that a would-be President have a certain age (35) and a certain time of residency (14 years). My interpretation of the “natural born Citizen” is not discriminatory but rather based on respect for the rule of law, i.e. the Constitution. Indeed, the clause has no race, color, or religion test, for its requirements apply to all people regardless of those factors. Under the clause, we are not condemning any child for any misdeeds of his or her parents. These children are not being penalized or stigmatized for anything the parents did or did not do or for their birth status. Rather, these childrens’ status is being characterized pursuant to a constitutional mandate that applies to defining the eligibility requirements to be President. These children are being treated no differently from how Congress treats persons differently when it comes to doling out government benefits to a person depending on that person’s relationship to the United States, i.e., citizen, resident, or alien. They are no different from the persons who cannot be President because they have been naturalized. Additionally, the Equal Protection Clause is not designed to equalize all persons and eradicate every distinction that may exist between people and for which people are not responsible. Indeed, guilt or innocence of the target of legislation does not control equal protection analysis. The requirements for Presidential eligibility emanate from the Constitution itself and neither the federal nor state legislatures nor voters themselves can avoid or change them unless done by a way prescribed the Constitution itself. Hence, there is nothing discriminatory about my wanting our Constitution respected. On the contrary, there is much wrong in allowing a majority of our legislatures or people to circumvent the Constitution for the sake of wanting for whatever reason any specific person to occupy the Office of President and Commander in Chief.

    Mario Apuzzo, Esq.

  74. avatar
    nbc September 14, 2009 at 11:30 pm #

    Yes, there is something inconsistent, namely that you have chosen to exclude people when it seems far more likely that the goal of natural born was to exclude naturalized citizens. Your attempt to based you argument on that which has been rejected by the courts, namely that in applying who is a citizen by birth one applies a different standard than to who is a natural born citizen.
    Now, you may argue that natural born is an additional status on top of being a birth right citizen to two US parents but that reading requires a bit more evidence.

    Mario Apuzzo: Do you really believe that there is anything fundamentally inconsistent between my unity of citizenship test for Presidential eligibility and the test the Founders established for the President and Commander in Chief of the Military?

  75. avatar
    nbc September 14, 2009 at 11:34 pm #

    Again you are making unfounded accusations that allowing children born to parents who are not both US citizens, to be president, is somehow and attempt to circumvent the Constitution. When in fact, the clear evidence shows that because the term natural born was not defined, the courts have to look at common law practices, and common law practices do not show that natural born was limited to jus sanguini but rather that it was extended to anyone born on US soil. That reading not only is consistent with the law of those days or since then but also with the fears of the Founders that some naturalized citizen would become President of the US.
    In fact, there are some great examples that shown that the term natural born and native born were seen as equivalent terms.

    Mario Apuzzo: Hence, there is nothing discriminatory about my wanting our Constitution respected. On the contrary, there is much wrong in allowing a majority of our legislatures or people to circumvent the Constitution for the sake of wanting for whatever reason any specific person to occupy the Office of President and Commander in Chief.

  76. avatar
    nbc September 14, 2009 at 11:35 pm #

    You cannot make that claim since the Constitution does not define the term. Thus the rule of law is that common law needs to be followed, and common law strongly supports a reading at odds with yours.

    Mario Apuzzo: My interpretation of the “natural born Citizen” is not discriminatory but rather based on respect for the rule of law, i.e. the Constitution.

  77. avatar
    nbc September 14, 2009 at 11:38 pm #

    Then the decision of eligibility is not a right to be enforced and can thus be ignored? Or perhaps a more rational argument is that there is no right for a court to have one be declared a natural born citizen.

    Mario Apuzzo: You also incorrectly assume that being allowed to be eligible to be President is a fundamental constitutional right.

  78. avatar
    nbc September 14, 2009 at 11:51 pm #

    And every child born on US soil owes allegiance and is thus a citizen. That’s the rule of law. To reject allegiance/citizenship to a child just because he is born to two ‘foreigners’
    But I also fear that you got it in reverse, allegiance creates citizenship.

    Mario Apuzzo: The Founders wanted to make sure to keep foreign influence out of the Office of President and Commander in Chief. We know from studying our own and international legal precedents that citizenship produces allegiance.

  79. avatar
    Greg September 14, 2009 at 11:57 pm #

    A law can violate 14th Amendment law by either implicating a fundamental right, OR by creating a class of citizens who are given unequal treatment. Even if you accept that running for office is not a fundamental right – and the circuits appear split on this issue – your two-citizen theory does create a classification between citizens. Those whose parents are US citizens and those whose parents include at least one non-citizen. Is it a discrete minority, as required by Carolene Products footnote 4? Obviously. Do it apply different standards to the different classes, you cannot disagree.

    Can your theory survive strict scrutiny? Not a snowball’s chance in hell. Korematsu is the standard by which successful strict scrutiny laws pass the test. Is our nation in mortal danger by allowing the children of aliens to become President? No. Does requiring your two-citizen test address some fundamental national security issue? Well, Henry Kissinger and Madeleine Albright were not natural born citizens, yet had access to all this nation’s secrets. So, clearly it doesn’t. You cannot identify a compelling state interest, of the type that allows a national origin or alienage distinction to survive strict scrutiny.

    Is the imaginary two-citizen parent test narrowly tailored? Again, no. It doesn’t forbid dual allegiances that arise because a state, like Italy or England, doesn’t care about the naturalization in foreign countries. So, you don’t get rid of all dual or competing allegiances. Your test is under-inclusive. It’s also over-inclusive, in that it would forbid Presidential aspirants who are born with no competing allegiances. So, your test is over- and under-inclusive.

    Now, can we think of a more narrowly tailored way to address concerns of foreign influence? Of course, we just ban foreign influence. We could have open access to records. Those are more narrowly tailored solutions.

    No compelling need, no narrowly tailored solution. What does that spell to you?

    My interpretation of the “natural born Citizen” is not discriminatory but rather based on respect for the rule of law

    The people arguing for anti-miscegenation laws argued that they had no discriminatory effect (everyone can marry according to these laws) and that they were just respecting the law.

    The “natural born Citizen” clause as I define it

    Thanks for admitting that it’s only you who define it this way and that you have no founders who said that there could be someone born here a citizen who was not also eligible for the Presidency.

  80. avatar
    Greg September 15, 2009 at 12:29 am #

    The “natural born Citizen” clause as I define it is no different from Article II’s requirements that a would-be President have a certain age (35) and a certain time of residency (14 years).

    It’s obviously different. There’s no recognized suspect classification beween 35-year olds and those under 35. There’s not suspect classification based on residency.

    The Court, however, has said that distinctions based on national origin or alienage status are suspect classifications.

    That it’s in the Constitution doesn’t allow it to escape scrutiny. The 14th Amendment changed the Constitution, so that all previous parts must be read in accordance with it. The Supreme Court had said, pre-14th, that African Americans could not be citizens, period. Do you doubt that African Americans can be President?

    I’m sure I can find Founders who say that African Americans could not be citizens. Since you cannot cite a single example of a Founder who thinks there is some disadvantaged citizen who could be born here but not be eligible for the Presidency, that means I can find infinitely more citations for African Americans not being citizens than you can find for your proposition. There is, thus, infinitely more proof that natural born citizen was understood, at least, by the Founders as meaning white natural born citizens.

    Do you doubt that to the extent that meaning of NBC existed, it was swept away by the 14th Amendment?

    But, this is just a sidetrack. The fact of the matter is that your argument is invalid ab initio. You simply cannot cite a single founder who thought that there could possibly be someone born here a citizen who could not also run for the Presidency. They considered Indians and Native Americans and African Americans as non-citizens. They could not conceive of someone born here a citizen who would be disqualified because of his birth from seeking the Presidency.

  81. avatar
    nbc September 15, 2009 at 12:38 am #

    Clap…clap…clap….

  82. avatar
    Mario Apuzzo September 15, 2009 at 1:13 am #

    Bob,

    I guess it is because of a one-second old baby’s allegiance that we make him or her a born citizen. Or does that baby grow to have allegiance to his/her country because he/she was born a citizen of that country? What do you think?

  83. avatar
    Mario Apuzzo September 15, 2009 at 1:24 am #

    You ever gave you the license to engage in any intelligent discussion. Rather, you would do much better on some morning radio show. Did you read the plain text of the Constitution?

  84. avatar
    Mario Apuzzo September 15, 2009 at 1:27 am #

    Misha,

    You must be some strange person if you see any comedy in my writings.

  85. avatar
    Mario Apuzzo September 15, 2009 at 1:29 am #

    I like the way you give me your opinion of what you believe a “natural born citizen” is without providing me with any of the evidence that you say I did not provide to you.

  86. avatar
    NBC September 15, 2009 at 2:22 am #

    I guess it is because of a one-second old baby’s allegiance that we make him or her a born citizen. Or does that baby grow to have allegiance to his/her country because he/she was born a citizen of that country? What do you think?

    Seems your understanding of allegiance may be somewhat confused. Allegiance comes with birth, citizenship follows from allegiance. Does allegiance ‘grow’? Do people who are born to two us citizens and who moves abroad immediately only to return 30 years later and then to run for president 14 years later have the same allegiance as the child born to two aliens in the US, who spent 44 years growing up in the country?

    Before you discuss allegiance, you may want to understand how the concept was used. Allegiance under the English common law referred to obedience to the laws of the King, or the Monarchy.

    And US law as well

    The concept is simple

    The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.

    Of course the 14th does not talk about allegiance but jurisdiction with all the impact of that.

    As James Ho pointed out

    The critical language of the Fourteenth Amendment is the phrase “subject to the jurisdiction thereof.”11 Proponents of repealing birthright citizenship argue that this language excludes all non-citizens—both lawful and unlawful—because “subject to jurisdiction” means allegiance

    The proponents of repealing birthright citizenship argued and lost.
    Seems that the case is quite clear here, although you seem to want to re-argue their case.

  87. avatar
    misha September 15, 2009 at 2:23 am #

    “Misha, You must be some strange person if you see any comedy in my writings.”

    Actually, I think all of your theories and legal gymnastics are hilarious.

  88. avatar
    misha September 15, 2009 at 2:43 am #

    Here is my latest response to Orly’s latest birth certificate concoction.

  89. avatar
    Lupin September 15, 2009 at 4:21 am #

    Even assuming (a) that there is a distinction between “naturel” and “citizen” in Vattel (which there is NOT), and (b) that Vattel ignores “jus soli” (which he does NOT), as far as he is concerned, it’s very clear-cut:

    If ONE of your parents, father OR mother, NOT TWO, is a citizen, then you’re a “naturel”.

    Obama’s mother was a citizen. Case closed.

    To paraphrase Mark in Doonesbury, you’re wrong, wrong, wrong, wrong, wrong, wrong.

    I understand that, having built your entire case out of a misreading of a fairly famous tome on the topic (and probably making money out of it), you’re reluctant to let it go.

    Stop using Vattel to bolster your case; it doesn’t; it undermines it.

    But by continuing to do, you come across not as a honest lawyer but as a swindler.

    I don’t know in which state you’re licensed, but I’m sure its local Bar has something to say about that kind of behavior.

  90. avatar
    Lupin September 15, 2009 at 5:36 am #

    In case someone wants the information, the footnote to Liv. I, Chap. XIX, #212, p. 499, which I quoted earlies is taken from the 1863 French edition of Vattel.

    You can find it on google books. It is edited and annotated by French Law Professor Pradier-Fodere, and there are notes credited to two other Jurists as well.

    Search for “Le droit des gens, ou principes de la loi naturelle appliqués la…” Volume 1 by Emer de Vattel, Silvestre Pinheiro-Ferreira, Camille Pradier-Fodéré, Jean-Pierre de Chambrier D’Oleyres. The footnote in question is by Pradier-Fodéré.

    This means that, at least in that specific section, jus soli is not being addressed by Vattel.

    It is still the Law of the Land, and if you have to rule it out and create a separate class of jus sanguinis citizens-only for matters of eligibility to the Presidency, you’re going to have an uphill battle. Still.

    However, that doesn’t change the fact that Vattel explicitly states that to be a “naturel” (a citizen, Vattel does NOT make a distinction, a crucial point), you have to be born from a father who is also a citizen.

    Vattel does not mention the mother anywhere; it was the author of the footnote who filled in the gap.

    But the One-Parent-Only is indisputable; you can’t read #212 any other way; the “twofer” argument is utterly wrong.

    Strict Vattel is that that citizen parent required to male you a Naturel must be the father.

    However, I don’t think that you can argue today that American Father = citizen, American mother = not citizen, even within the limited framework of eligibility to become President.

    Still, if Apuzzo wishes to be true to Vattel, that is the only argument left for him to make.

    (I’m surprised that Vattel didn’t say somewhere that all women are whores except his mother who was a saint, but that’s another discussion.)

  91. avatar
    Greg September 15, 2009 at 5:41 am #

    You ever gave you the license to engage in any intelligent discussion.

    Is this English?

    Did you read the plain text of the Constitution?

    Yes. And it seems to me the Constitution makes two sets of distinctions with two categories in each:

    1. Citizen/non-citizen
    2. naturalized citizen/natural-born citizen

    I can’t find any founder who said there were more categories of citizen. I can’t find any founder or writer of the 14th Amendment who thinks that there could be a person born here who was:

    A. A citizen; and,
    B. Not eligible to run for President

    Can you? If you can, you’ve been hiding it.

  92. avatar
    kimba September 15, 2009 at 7:29 am #

    You have the burden of proof, not me.

  93. avatar
    Black Lion September 15, 2009 at 10:13 am #

    Greg, tremendous response. Espcially with your comparisons to show the underlying weakness in Mario’s argument.

  94. avatar
    Black Lion September 15, 2009 at 10:21 am #

    Thanks for the clarification of De Vattel Lupin. It is amazing how the misinterpretation and translation of Vattel regarding the 2 parents must be citizens issue has become accepted. Everyone that makes that dubious claim that the founders inttended to or made the definition of “natural born” meaning 2 parents are citizens, needs to read what you wrote. Unfortunately it won’t make a difference. They want to believe that there will be some sort of divine intervention or magic that will remove the duly elected President from office and eliminate all of his “socialist agenda”…

  95. avatar
    Greg September 15, 2009 at 11:40 am #

    After I wrote that, I learned that Paul Clark made a similar argument about the distinction between natural and naturalized citizens vis a vis the 5th Amendment in a 2006 article from the John Marshal Law Review, “Limiting the Presidency to Natural Born Citizens Violates Due Process.” 39 J. Marshall L. Rev. 1343. He argues, basically, that the Fifth Amendment has overruled, sub silentio the prohibition against naturalized citizens running for the Presidency.

    As to whether there is a suspect classification between so-called native-born and so-called natural-born citizens, I’d point to the Court’s ruling in Schneider v. Rusk, 377 US 163 (1964):

    This statute proceeds on the impermissible assumption that naturalized citizens as a class are less reliable, and bear less allegiance to this country than do the native born. This is an assumption that is impossible for us to make.

    If it’s an impermissible assumption to assume that naturalized citizens are less reliable or committed to this country than “native born,” then how much more impermissible must it be to assume that “native born” are less reliable or committed than the “natural born?”

    Clark’s article points out that the 14th Amendment has already been held to overrule or limit the 11th Amendment, in Fitzpatrick v. Bitzer, 427 US 445 (1976). He writes:

    Despite the facts that there was no precedent to the contrary, there was no historical evidence that the framers intended to limit the Eleventh Amendment, and there was no logical contradiction between the two amendments, the Supreme Court in 1976 declared that the Fourteenth Amendment partially repealed the Eleventh Amendment.

    After Fitzpatrick, then, Congress can abrogate a state’s 11th Amendment immunity by invoking the 14th Amendment.

    Clark’s argument is pretty novel, and I doubt it would come before the court, and if it did, I doubt the court would adopt his reasoning, but it’s an interesting argument, nonetheless.

  96. avatar
    Dr. Conspiracy September 15, 2009 at 11:56 am #

    Greg: Do you doubt that African Americans can be President?

    Plaintiff Pastor Lindstedt certainly does.

  97. avatar
    Dr. Conspiracy September 15, 2009 at 12:15 pm #

    Mr. Apuzzo: You do not understand what a “natural born Citizen” is. It only applies to being President. I did not make the rule, the Framers of the Constitution did.

    You no doubt know that the deliberations of the constitutional convention were held in secret, with delegates pledged not to disclose what was going on. What you may not know was that the deliberations about the definition of “natural born citizen” carried with it a pledge that the delegates never disclose the “two citizen” rule, not in writing, nor to another soul, and that they would take this secret to their graves.”

    Fanciful? How else do you explain their silence about creating a definition whose sole use in history and law was to apply it to an office that had never existed in history. If the ONLY distinction in law and history of the phrase “natural born citizen” is to define the qualifications of the President of the United States, then how can you account for the existence of the term in the first place?

    Your contention is nonsense. Natural born citizens are citizens who are born that way–nothing more and nothing less. Always has been–always will be.

  98. avatar
    Dr. Conspiracy September 15, 2009 at 12:29 pm #

    Darn, you should have dropped by the house while you were in the state. I’m glad you enjoyed our cheap gas.

  99. avatar
    Dr. Conspiracy September 15, 2009 at 12:32 pm #

    Only there are some really huge jumbo shrimp out there.

  100. avatar
    Sally Hill September 15, 2009 at 4:19 pm #

    I’m certainly glad that Bush was never the target of any vitriol, hate, or questioning of his legitimacy! Wheew!

    Thank goodness for that!

  101. avatar
    Dr. Conspiracy September 15, 2009 at 4:59 pm #

    For the record, I bought Dowd’s book, Bushworld found it biased and put it away.

  102. avatar
    misha September 15, 2009 at 8:32 pm #

    Obama has not invaded another country, using fabricated intelligence, in order to get our hands on its oil.

    Obama was never convicted of DUI, a misdemeanor, as has Bush. You can google it. Bush is the epitome of affimative action for the wealthy. And Bush is a typical hypocritical evangelical.

    So fie on the right wing. I detest them. And Orly Taitz, a nogoodnik refusenik, can join them in the trash heap.

  103. avatar
    BlackLion September 15, 2009 at 9:36 pm #

    More Mario disinformation…from a commentor over at tROSL regarding something Mario wrote…

    “Also, I’m curious, what do you say in response to the following? It is the best argument I’ve ever seen, and the most succinct, from Attorney Apuzzo:

    “In our citizenship laws, jurisdiction breaks down into three types, territorial, legal, and political. Territorial means one is physically present on a sovereign’s territory. Legal means that once present on that territory, one is subject to the laws of that sovereign. Political means that not only is one subject to that sovereign’s laws, but is also duty bound to give that sovereign allegiance and loyalty for the purpose of preserving and protecting that sovereign and its people. The 14th Amendment requires the coming together of jus soli and jurisdiction in order for a baby to be born a U.S. “citizen.” This jurisdiction is not just territorial and legal jurisdiction, which is how Justice Gray in Wong Kim Ark, contrary to the express will of Congress, the Executive, and the People, defined it to make Wong a citizen and whose position has become the incorrect approach to applying the amendment. Apart from the Wong Court usurping the power of the other two branches of government and of the People, that could not be the correct application, for just being born on the soil automatically provides territorial and legal jurisdiction and would render the word “jurisdiction” a redundancy. The minute a baby is born he or she is on the territory of the sovereign. Also, just being physically there, the baby is subject to the sovereign’s laws. Hence, that baby still has to satisfy the requirement of political jurisdiction, i.e., that he or she owes sole and absolute allegiance and loyalty to the sovereign. Such sole and absolute allegiance and loyalty can only occur at the time of birth if the baby is born only and only if subject to the sole political power of the United States. And that can only occur if the baby at the time of birth does not inherit any other citizenship from either his mother or father. That happens if the baby’s mother and father are both U.S. citizens, for to be otherwise would allow one of the parent’s foreign citizenship to descend upon the baby should the country of that parent exercise jus sanguinis citizenship. There would be no inheritance of a foreign citizenship if the foreign parent’s country follows only jus soli citizenship. But this would be an exception and rarely occur given the citizenship practices of most nations. Since the United States would recognize, dual or multiple citizenships in the baby under the proper circumstances as established by treaties or international law, it would consent to its jurisdiction not being complete over that baby and under the concept of jurisdiction laid down by Justice Marshall, its jurisdiction would not be absolute.

    Such a baby born with divided allegiance is therefore technically not a Fourteenth Amendment citizen. Because of Wong, our government has refused to interpret the “subject to the jurisdiction” clause correctly, even to the point of allowing baby’s born in the U.S. of illegal alien parents to be “citizens.” There is no evidence that the Fourteenth Amendment amended in any way Article II. Hence, such an expansive interpretation of a Fourteenth Amendment “citizen” does not and should not change the meaning of an Article II “natural born Citizen,” which is the original standard the Founding Fathers established for one to be eligible to be President and Commander in Chief.”

    I’ve looked in every possible way to see how this is in error. I cannot find it. It is common sense. It is factual. It is correct. Period.”

    It seems like Mr. Apuzzo’s entire case is predicated on the SCOTUS ruling in the Wong Kim Ark case not existing….Interesting…

  104. avatar
    Bob September 15, 2009 at 9:47 pm #

    My favorite part: “I’ve looked in every possible way to see how this is in error.

    Here you go: The 14th Amendment requires the coming together of jus soli and jurisdiction in order for a baby to be born a U.S. “citizen.”

    …that’s not what Wong Kim Ark says.

    So the lies continue with “which is how Justice Gray…defined it to make Wong a citizen and whose position has become the incorrect approach to applying the amendment.”

    Just the usual Wong-is-wrong argument.

  105. avatar
    Greg September 15, 2009 at 10:13 pm #

    It seems like Mr. Apuzzo’s entire case is predicated on the SCOTUS ruling in the Wong Kim Ark case not existing

    Well, Wong Kim Ark, also Lynch v. Clarke and the dozens of other cases, legal authorities, scholars and general understanding of the nature of citizenship!

  106. avatar
    nbc September 15, 2009 at 10:19 pm #

    Actually jus soli and jurisdiction is how a baby born in the US becomes a US citizen. Jus Soli because it states every child born on US soil and ‘jurisdiction’ because the 14th includes “jurisdiction”

    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.

    It’s based on the same principles that guided English Common law where allegiance/obedience/jurisdiction and jus soli caused a child born on English soil to become British.

    It also explains why in both cases children born to foreign dignitaries and invading military are excluded.

    Are you perhaps reading the dissenting opinion?

    Present your claim with supporting quotes.

  107. avatar
    Mario Apuzzo September 16, 2009 at 1:23 am #

    NBC,

    It appears that you are arguing that “subject to the jurisdiction” should have a limited meaning. You argue that as long as the child is to some degree within the jurisdiction of the United States, the element is satisfied. You cite that passage from Wong Kim Ark to support your position.

    But a carefull reading of this quote shows that it is not the baby’s allegiance that counts for citizenship but rather being born in the allegiance of the sovereign. Do we really expect a baby to have allegiance? What can a baby tell us about the U.S. Constitution? Unlike the English, the Framers of the Constitution and Fourteenth Amendment demanded that the United States have complete and absolute allegiance and power over the new-born United States citizen. Let us remember the concept of not being born “subject to a foreign power,” as required by the Civil Rights Act of 1866 which is the genesis of the Fourteenth Amendment. The United States would have to have sole and absolute allegiance or jurisdiction over the new-born in order for that baby not to be subject to any foreign power.

    With birthright citizenship, the baby is given citizenship at birth, provided the United States has complete and absolute jurisdiction (power) over the baby, which means no other sovereignty has any power over that baby. As the baby grows, he or she becomes conscious of that birth citizenship and learns its values from his or her citizen parents. It is those citizen parents who will instill in that child the political, social, and cultural values of that birthright citizenship. Then and only then will the growing child start to develop his or her own sense of sole allegiance to the sovereign, the United States.

    Hence, when analyzing “subject to the jurisdiction,” we do not only look to see if the United States has “some” jurisdiction over the baby. We must also examine if any other power or sovereign also has jurisdiction over the baby. If another foreign power has such jurisdiction, like in the case when the baby inherits from one or both of his or her non-United States parents a foreign citizenship which has the same effect as if one of the baby’s parents were a foreign diplomat or an alien member of an invading army, then that child is not born within the complete and absolute jurisdiction of the United States. In such circumstance, the baby is born with dual or multiple allegiances over him because more than one sovereign can exert power over him or her and thereby demand political and military obligations of him or her. Of course, this does not mean that the baby is confused as to whom he or she should give allegiance. What it means is that more that one sovereign has power or jurisdiction over the baby. Being born with such conflicting allegiance will by nature interfere with the child developing a sole attachment and allegiance to just one nation. This is the reason that for one to be eligible to be President and Commander in Chief, he or she must be born within the sole and absolute allegiance (jurisdiction) of the United States. That means that the child must be born in the United States to a mother and father who are both United States citizens.

    Mario Apuzzo, Esq.

  108. avatar
    NBC September 16, 2009 at 1:29 am #

    But a carefull reading of this quote shows that it is not the baby’s allegiance that counts for citizenship but rather being born in the allegiance of the sovereign. Do we really expect a baby to have allegiance?

    Yes, just read up on English Common Law and understand the meaning of allegiance. These words have meaning and when you insist on arguing a strawman of our own creation then you have done nothing to address the real issues.
    Understanding is the first step.

  109. avatar
    NBC September 16, 2009 at 1:31 am #

    Hence, when analyzing “subject to the jurisdiction,” we do not only look to see if the United States has “some” jurisdiction over the baby. We must also examine if any other power or sovereign also has jurisdiction over the baby.

    Foreign countries have no jurisdiction over their citizens when abroad, except in case of foreign dignitaries
    Glad you asked.

    Really Mario, this has been discussed in some depth in the Wong Kim Ark briefs, the ruling and many of the resources from those days.

    Geez.

  110. avatar
    NBC September 16, 2009 at 1:32 am #

    Being born with such conflicting allegiance will by nature interfere with the child developing a sole attachment and allegiance to just one nation.

    Nonsense. If France were to pass a law that Mario Apuzzo is a French citizen would you suddenly be unable to run for president.

    Seriously…

  111. avatar
    NBC September 16, 2009 at 1:46 am #

    Let us remember the concept of not being born “subject to a foreign power,” as required by the Civil Rights Act of 1866 which is the genesis of the Fourteenth Amendment. The United States would have to have sole and absolute allegiance or jurisdiction over the new-born in order for that baby not to be subject to any foreign power.

    You do understand that the term subject to is different from subject of. Your ability to read and understand and review how these terms were used is astonishing. You must realize that a child on US soil is not subject to any foreign power, and that such a foreign power has no ‘power’ over the child none at all.

    The clause in the civil rights act defining citizenship was proposed in the Senate In the course of the debate in that body Senator Trumbull the chairman of the judiciary committee who drew the bill said It is competent for Congress to declare under the Constitution of the United States who are citizens If there were any question about it it would be settled by the passage of a law declaring all persons born in the United States to be citizens thereof That this bill proposes to do Cong Globe 1st Sess 39th Congress pt 1 p 475

    I am afraid that you are ignoring much of the debate surrounding these issues to further your cause.

  112. avatar
    misha September 16, 2009 at 2:44 am #

    Israel considers anyone in the world who is biologically Jewish, to be a citizen.

    So your argument falls apart at the starting gate.

  113. avatar
    Mario Apuzzo September 16, 2009 at 2:48 am #

    Yes master.

  114. avatar
    Mario Apuzzo September 16, 2009 at 2:51 am #

    Yes, that’s right. Just defer to somebody else’s argument in some brief.

    By the way, that was the government of the United States (Congress and the Executive) who said that Wong was not a citizen. I would think that they had to know something about our citizenship laws.

  115. avatar
    Mario Apuzzo September 16, 2009 at 2:52 am #

    Read and understand. It is not French law saying there is conflicting allegiances. It is U.S. law.

  116. avatar
    Mario Apuzzo September 16, 2009 at 2:58 am #

    I just love how you simply say I do not understand when I make a point that is damaging to your argument. I can’t count how many times your group on this blog have already said I don’t understand.

    Also, that quote is meaningless. You do not seriously expect it to have any weight, given that the statute as written requires that the person be born in the United States and not be subjct to any foreign power. Don’t you think that the text of the statute itself counts much more than some statement made while someone is talking which left a crucial element of the law?

  117. avatar
    dunstvangeet September 16, 2009 at 3:32 am #

    Just wondering, Mario Apuzzo a couple of things.

    Let’s say we have a situation of the following:

    A man comes to America from Italy with his wife. He has children before he Naturalizes. The children, by virtue of Wong Kim Ark, are Citizens by birth. However, because of Italian Law, they are also Italian Citizens. According to your definitions, they are not Natural Born. These are 1st Generation Americans.

    Now, a man from this family, marries a woman from another family in the simular situation. They have lived in America their entire lives, and have been citizens their entire lives. They are also Italian Citizens, but they’ve been U.S. Citizens since birth. They marry and have children (2nd Generation Americans).

    What about the 2nd Generation Americans? They had their children, while being in this country, but because of Italian Law, they are Italian Citizens as well. So, my question is are they Natural Born Citizens? I’m just trying to see the definition that you’re coming from. Is the second-generation American enough for you to consider them a Natural Born Citizen? Or because of their dual citizenship, do they still have too much Italian influence to become Natural Born Citizens?

    Italy has no limit on the way Jus Sanguinus works for them on foreign births? So, if this situation happened for 10 generations, would that be American Enough for you? Or is the theoretical dual citizenship still too much foreign influence?

    Dual Citizenship, and two citizen parents are two very different things. Which one are you truly arguing on?

  118. avatar
    Greg September 16, 2009 at 5:41 am #

    Your case would be so much stronger if it weren’t a rehash of George D. Collins amicus brief in Wong Kim Ark, and hadn’t been expressly considered and rejected, 6-2, by the Supreme Court in that case.

    Boiled to its essence, your argument is, Collins was right and the Supreme Court was wrong.

    It’s not the most persuasive argument, especially when Justice Gray spent several pages discussing what the 14th Amendment meant when it discussed jurisdiction and your only response to that reasoned argument is, Collins was right!

  119. avatar
    Greg September 16, 2009 at 5:49 am #

    The 14th Amendment, as written, doesn’t say subject to any foreign power, it says “subject to the jurisdiction of the United States.” Thus, the Civil Rights Act of 1866 is as much parol evidence to the 14th Amendment as are the statements of the writers of the statute and amendment made in debate.

  120. avatar
    Greg September 16, 2009 at 6:52 am #

    then that child is not born within the complete and absolute jurisdiction of the United States.

    You’re confusing “complete and absolute” with “exclusive.” There are many cases in the law where “complete and absolute” control can exist coincident with non-exclusive control. An undivided one-half-interest in a property, for example, gives both owners complete and absolute control over the property.

    When anyone who is not an ambassador or a member of an Indian tribe is within the United States, they are under the absolute and complete control of the United States. Another country could demand obligations, but could not enforce them. They could seek to arrest and try someone here, but they could not do so without our permission.

    And your dual citizen parent rule doesn’t eliminate the problem of dual citizenship. You simply need another country that has jure sanguinis citizenship then your so-called natural born citizen could be subject to the demands of a foreign country.

  121. avatar
    Dr. Conspiracy September 16, 2009 at 7:31 am #

    Can you explain why Congress dropped the “not subject to” language in the 14th amendment? I’m sure it wasn’t accidental.

  122. avatar
    Dr. Conspiracy September 16, 2009 at 7:35 am #

    That’s like saying the legislative and executive branch in Mississippi in the 1950’s understood voting rights.

    Read up on the Chinese Exclusion Act.

    Or it is like the Roosevelt administration understanding civil liberties as the interned Japanese Americans during World War II.

    Apuzzo doesn’t seen able to admit the role of racism in American history.

  123. avatar
    AdrianInFlorida September 16, 2009 at 8:19 am #

    Mario Apuzzo: Read and understand. It is not French law saying there is conflicting allegiances. It is U.S. law.

    So, a foreign country can decide to claim citizenship of persons born in another country. Then that person is deemed to no longer be ‘Natural born’ in his birth country? Sounds a bit ‘off’.

  124. avatar
    Lupin September 16, 2009 at 12:12 pm #

    I’m glad to see you’re no longer using Vattel to support your rather novel argument.

    Vattel unambiguously states that, for example, if an Italian woman comes to the US and marries an American man, their child is a “Naturel”, which in your parlance is a “Natural-born citizen.”

    Since I presume you wouldn’t argue that reversing the sexes would be sufficient to invalidate this, we are left with the inescapable conclusion that, because Obama’s mother was a citizen, Obama is a full jus sanguinis “Natural-born citizen” (your term, not mine), as defined by the very jurist who originated the concept.

    Check and mate.

    Anything else you say is basically made up stuff.

    Personally, I think you’re a disgrace to our profession and should be disbarred.

  125. avatar
    Dr. Conspiracy September 16, 2009 at 12:24 pm #

    Mario Apuzzo: “I just love how you simply say I do not understand when I make a point that is damaging to your argument”.

    Mr. Apuzzo, I presume that you have been an attorney long enough to know that “do not understand” is a polite convention used in lieu of “intentionally misrepresents.” I don’t doubt that you understand your material. You just haven’t found the gold coin in your bucket of mud, and I am fairly certain that there isn’t one.

    The challenge I face is that you and your tribe “misunderstand” some rather obscure and sometimes complex material and as a result you publish before a naive audience who has no ready avenue to test the truth of your claims. I am always playing “catch up”, having to research and expose your “misunderstandings” after the fact. (Many thanks to lawyers here to bear much of that burden of late.) That is you can “misunderstand” with impunity. But what I have found is that you only convince the already convinced, and I convince the already convinced. We are both wasting our time, only my faction is 10 times bigger than the wildest estimates of yours, and mine includes all the Federal Judges.

  126. avatar
    NBC September 16, 2009 at 12:50 pm #

    I am just pointing out your confusion. I am thus not surprised that others have pointed out the same. Such confusion can be pervasive when one has taken on the duty to argue in favor of a particular conclusion.

    Mario Apuzzo: I just love how you simply say I do not understand when I make a point that is damaging to your argument. I can’t count how many times your group on this blog have already said I don’t understand.

  127. avatar
    NBC September 16, 2009 at 12:52 pm #

    It’s called reality.

  128. avatar
    NBC September 16, 2009 at 12:55 pm #

    When anyone who is not an ambassador or a member of an Indian tribe is within the United States, they are under the absolute and complete control of the United States. Another country could demand obligations, but could not enforce them. They could seek to arrest and try someone here, but they could not do so without our permission.

    Finally someone who understands… Seems that Mario’s understanding of ‘allegiance’ is based on a somewhat naive understanding of the concept, rather than on the judicially established meaning of the term, from the time of Calvin to present day.

  129. avatar
    Mario Apuzzo September 16, 2009 at 1:21 pm #

    Lupin,

    I guess that all the great lawyers that have argued this issue like I do, like the ones who argued for the United States of America in Wong Kim Ark, are a “disgrace to our profession” and should be “disbarred.”

    You said “our profession.” I doubt that you are an attorney because no attorney that is committed to the rule of law and justice would make such a comment.

    Mario Apuzzo, Esq.

  130. avatar
    Greg September 16, 2009 at 2:21 pm #

    Well, to be technical about it, the parties in Wong Kim all believed that if Wong was made a citizen, he would be eligible to become President. That was the capstone argument made by George D. Collins.

    None made a distinction between being a citizen by birth and being a citizen by birth of two citizen parents.

    None argued that the common law embraced the idea of birth within the nation to two citizen parents. In fact, they didn’t even endorse the idea that the common law adopted jus sanguinis. The US argued for a rejection of the common law.

    None interpreted Vattel to say that 2 citizen parents were required. None argued that Dutch citizenship law was the basis of our citizenship laws.

  131. avatar
    nbc September 16, 2009 at 2:27 pm #

    Seems that the history of Wong Kim Ark shows that many of the ‘arguments’ proposed by Mario were indeed presented by the plaintiffs (US Government) and rejected. That both sides agreed that Wong Kim Ark, if found to be a citizen, could run for President, is just icing on the cake.

    Which explains why Mario has to consider Wong Kim Ark ‘poor precedent’ even though the courts appear to disagree there.

  132. avatar
    Gordon September 16, 2009 at 2:41 pm #

    You guys think Mario is confused, I don’t, I think he is intentionally injecting confusion. He’s working an angle in order to cash in on his 15 minutes.

  133. avatar
    Lupin September 17, 2009 at 1:52 am #

    It seems to me that you’re making a meretricious, if not frivolous, argument, possibly in bad faith, wasting the Court’s time and resources, which AFAIK is against the rules of the Bar.

    As for your claim to care about the rule of law, the fact that (to the best of my knowledge) you haven’t taken any action to stop the previous administration’s trampling of the your constitution brands you as a partisan, or at least a hypocrite.

  134. avatar
    Lupin September 17, 2009 at 2:01 am #

    I am not a Constitutional lawyer and will admit beforehand to lack of familiarity with the subject, so I will ask a question instead:

    Why on Earth is the 14th Amendment relevant at all?

    If I understand correctly, the 14A was there to expand the notion of citizenship to previous classed denied that status.

    It then required further clarification through SCOTUS cases like Wong Kim Ark etc.

    OK, I get that.

    But surely the 14A wasn’t meant to, could not affect those who were ALREADY citizens before? It wasn’t retroactively modifying their status?

    If Obama had been born before 1868 (and for argument’s sale white), from an American mother (or for argument’s sake father) and an Italian spouse, is anyone claiming that baby Obama wouldn’t been held, at that time, prior to 1868, a Naturel, or citizen, because of his parent?

    If that is the case, then 14A is irrelevant, Wong Kim is irrelevant, etc.

    In order to put the 14A (& Wong Kim etc) into play, shouldn’t you have to establish that Obama would NOT have been a citizen prior to 1868?

    Vattel, if nothing else, makes it clear that he would have.

    Perhaps a more learned jurist than I can find cases about people born from one non-American parent prior to 1868 who were NOT considered citizens?

  135. avatar
    Lupin September 17, 2009 at 2:05 am #

    I forgot to address the “our profession”.

    If Dr Conspiracy agrees to serve as an independent witness, I will email him a scan of my Sorbonne Law University 1978 diploma.

    I would of course require that you too prove your credentials, because judging from what I’ve seen here, you’re not a hotshot.

  136. avatar
    misha September 17, 2009 at 7:31 am #

    Excellent question. First, I am not a lawyer, but I do have a paralegal certificate from Old Dominion University in Norfolk, Virginia.

    The 14th A. is cited all the time, because it establishes birthright citizenship, and was affirmed by the SCOTUS in WKA, so the two combined make Obama a NBC, irrespective of his parents’ status.

    The Obama haters tell their gullible audience that a president, and president only, requires both parents be citizens – a super NBC class, which does not exist in either case law or statutes. Orly and her coterie insist that there are two classes of birthright citizenship: native born, if one or none of the parents are citizens. They then tell their acolytes, that only if both parents are citizens at the time of birth, then the child is a natural born citizen, and eligible for the presidency.

    That, of course, is an urban myth which has found a receptive audience among white citizens who cannot abide a black family in the White House. You will notice that the birthers are all white, with the exception of Alan Keyes, who is still licking his wounds from the Senate race, when he moved from Maryland, established Illinois residency, and ran as the Republican candidate against Obama, and was trounced.

    Keyes was picked by the GOP, when it was splashed in the papers that the white GOP candidate had an acrimonious divorce, and demanded his wife go with him to a Parisian sex club, where everyone walked around nude, and copulated with strangers.

    So much for God and Family Values, which is what the Republicans call their core values, and castigate everyone else as morally corrupt, and inveigh against liberals as libertines lacking a moral compass, every time they get within five feet of a microphone.

    See Ted Haggard.

  137. avatar
    misha September 17, 2009 at 7:46 am #

    “I would of course require that you too prove your credentials, because judging from what I’ve seen here, you’re not a hotshot.”

    Bravo, mon ami!

    Au «birthers»: vous êtes fou!

  138. avatar
    misha September 17, 2009 at 7:54 am #

    “I will email him a scan of my Sorbonne Law University 1978 diploma.”

    I will never accept it. It is a forgery by Obama’s thugs. You can’t fool me. (red alert: snark)

  139. avatar
    Paul Pieniezny September 17, 2009 at 8:30 am #

    misha: “I would of course require that you too prove your credentials, because judging from what I’ve seen here, you’re not a hotshot.”Bravo, mon ami!Au birthers: vous êtes fou!

    Normally, I do not feel like correcting spelling errors, particularly those not in the English language. But we’re discussing Vattel and his use of the plural. So, I feel compelled to say that in this case, since “vous” refers to several people, it is “vous êtes fous” – “vous êtes fou” would be correct if “vous” were a polite second person singular. It is as intricate as that.

    Personally, I’d vote for “naissanceur” as the French for “birther”, rather than “naissanciste”, “nataliste” or “nativiste” – but what does Lupin think? In any case, let me rephrase Misha’s sentence with the immortal words of the Count of Anterroches: “Messieurs les naissanceurs, tirez-vous les premiers!”

  140. avatar
    misha September 17, 2009 at 8:39 am #

    You’re right: my French is high school level, and so my syntax is poor.

    Thank you for fixing my attempt at camaraderie.

    In the immortal words of a Jewish school teacher I once had: do me a favor; speak English.

    I have to brag: at one time my French was good enough to pick up a girl on the beach at the Club Med in Eilat, Israel. Don’t tell my wife.

  141. avatar
    Welsh Dragon September 17, 2009 at 8:41 am #

    lol My French is just about up to that one!

  142. avatar
    Lupin September 17, 2009 at 9:06 am #

    Using “naissance” as the root word strikes me as, well, not Latin enough. 🙂

    Off the top of my head, I’d say that “Nativiste” might probably be the best translation. (“Lunativiste” would be an acceptable substitute. 🙂 )

    You’re correct about “fous” plural, as in “Ils sont fous ces Romains!” (Those Romans are crazy), a popular quote from the ASTERIX comic book series.

  143. avatar
    Lupin September 17, 2009 at 9:07 am #

    She was probably drunk! 🙂

  144. avatar
    misha September 17, 2009 at 9:13 am #

    ”Lunativiste”

    I love it. We’re on a roll.

  145. avatar
    Paul Pieniezny September 17, 2009 at 11:00 am #

    Lupin: Using “naissance” as the root word strikes me as, well, not Latin enough. Off the top of my head, I’d say that “Nativiste” might probably be the best translation. (”Lunativiste” would be an acceptable substitute. )You’re correct about “fous” plural, as in “Ils sont fous ces Romains!” (Those Romans are crazy), a popular quote from the ASTERIX comic book series.

    Nativism has a political meaning in US politics, I seem to remember: it was the only coherent policy of the Know Nothing party. In French, it creates (unfortunate) echoes of Leibniz and Rousseau. I have naissanceur to create an association with “renvoyer l’ascenseur” (answer in kind). I like the idea of answering in kind to these people.

  146. avatar
    misha September 17, 2009 at 11:11 am #

    “I like the idea of answering in kind to these people.”

    Yes, exactly.

  147. avatar
    ballantine September 17, 2009 at 12:53 pm #

    I think there is a story behind the 14th amendment. In the early republic, no one questioned the continuance of birthright citzenship of the English common law. However, by the 1830s, abolishionists were arguing that native-born blacks were citizens as the common law made no distictions on race. See, American Jurust and Law Magizene, January, 1834. Hence, birthright citizenship became a political issue culminating, of course, in Dredd Scott. While Taney’s opinion didn’t directly question birthright citiznship, Daniels’concurrence did. Justice Curtis, who resigned from the court in protest over the decision, had his dissent setting forth the common law doctrine embraced by radical republicans. Lincoln’s attorney general unsuprisingly forcefully embraced the common law as well. To the republicans who passed the 14th amendment, it was merely declaratory of the common law that had always been the law until questioned by Dredd Scott. To them, native-born blacks had always been citizens by virtue of their birth. No one in the debates thought they were changing existing law regarding citizenship by birth, However, it is clear everyone didn’t agree on who should be excluded from the common law rule. It is not clear anyone thought one’s parents had to be citizens, as blacks would not be have been citizens with such a requirement which would be contrary to their long held beliefs.

    The republicans were essentially removing any doubt about who was a native or natural born citizen so that there could not be another Dredd Scott. Thus, while the 14th amendment does not directly address the Art. II definition, it is evidence that the 39th Congress reaffired the common law doctrine that they thought was already in the constitution.

  148. avatar
    misha September 17, 2009 at 3:11 pm #

    Excellent synopsis. Thank you.