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185 Responses to Question for Mario Apuzzo (4)

  1. avatar
    nbc September 17, 2009 at 4:09 pm #

    I know, I know, I know…

    But won’t tell..

    Great book actually

  2. avatar
    jvn September 17, 2009 at 4:10 pm #

    This would also appear to be a good find from the works of William Rawle, a member of the PA delegation to the Constitutional Convention and PAs first US Attorney (appointed by Washington):

    “The citizens of each state constituted the citizens of the United States when the Constitution was adopted. The rights which appertained to them as citizens of those respective commonwealths, accompanied them in the formation of the great, compound commonwealth which ensued. They became citizens of the latter, without ceasing to be citizens of the former, and he who was subsequently born a citizen of a state, became at the moment of his birth a citizen of the United States. Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity. It is an error to suppose, as some (and even so great a mind as Locke) have done, that a child is born a citizen of no country and subject of no government, and that be so continues till the age of discretion, when he is at liberty to put himself under what government he pleases. How far the adult possesses this power will hereafter be considered, but surely it would be unjust both to the state and to the infant, to withhold the quality of the citizen until those years of discretion were attained. Under our Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however the capacity was acquired,) at the time the Constitution was adopted, no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.”

    http://www.constitution.org/wr/rawle_09.htm

    This probably deserves it’s own blog post Doc, you should check it out and feel free to lift it from me and remove my reply here…

    jvn

  3. avatar
    nbc September 17, 2009 at 4:10 pm #

    From Coke and Locke’s perpetual allegiance to the US’s Volitional Allegiance… And then the chapter on birthright citizenship.

    Truly recommended to any scholar

  4. avatar
    nbc September 17, 2009 at 4:12 pm #

    Nice find, will steal it for use on my blog if you don’t mind. Will link to your posting of course.

  5. avatar
    nbc September 17, 2009 at 4:13 pm #

    Oops, I already posted this one

  6. avatar
    nbc September 17, 2009 at 4:23 pm #

    Rawle was not a member of the Federal Constitutional Convention:

    During the Constitutional Convention, he met with many delegates informally.[265]

  7. avatar
    jvn September 17, 2009 at 4:35 pm #

    I stand corrected. He was a delegate to PAs Constitutional Assemply in 1789.

    http://www.rawle.com/About_History.asp

    Still…

  8. avatar
    Dr. Conspiracy September 17, 2009 at 4:40 pm #

    Rawls is quoted on my Great mother of all natural born citizen quotations page article.

  9. avatar
    nbc September 17, 2009 at 5:12 pm #

    Still a great reminder as this is very relevant to understand the thinking of those days.

  10. avatar
    nbc September 17, 2009 at 5:33 pm #

    Now on the Fringe

    I know Dr C, it needs a lot more work but we have to start somewhere…

  11. avatar
    ballantine September 17, 2009 at 5:42 pm #

    Kent and Story clearly wrote the two most influential treatises of the period, but Rawle and Tucker are right behind. Of course, none of them got the Vattel memo. Unfortunately for Mario, the court has always given these famous early treatises much weight as these were the leading scholars of the early republic.

  12. avatar
    misha September 17, 2009 at 7:02 pm #

    Yeah, they never got the memo. Ain’t that a shame?

  13. avatar
    Sally Hill September 17, 2009 at 8:16 pm #

    I’m curious as to why, with such an ‘opinion’ from Mr. Rawle, was there ever a need for cases such as WKA, Minor, or Elg? Why didn’t the court just refer to Mr. Rawle’s opinion on the matter? Could it be because it was merely Rawles’ OPINION, and not fact or even the majority view?

    While I’m sure you disagree with me, the fact is quite simply, if it had been the only / majority view, there would not have been a need for any SCOTUS decisions in those cases.

    While the post might have been a nice find, too bad you didn’t continue to post the rest of Mr. Rawles’ views on the subject. Apparently, Mr. Rawle likes to have it both ways (humm…seems as though I know others like this too! 🙂

    It would seem that Mr. Rawle felt that parents had the right to bestowe their own citizenship upon their children. What if the parent was foreign and then wanted to pass their foreign citizenship to their child. Therefore, it would be directly opposed to that parental nature to take away the power of the parent to convey subjecthood or citizenship in another nation.

    My goodness – I would say Mr. Rawle was a greedy gus – not only did he want any child born on US soil to enjoy the fruits of being a NBC, but he ALSO wanted a parent to have the right to convey foreign citizenship (should it exist) ALSO! Let’s just have it all without giving up anything.

    Kind of a contradiction, wouldn’t you say? Perhaps the courts had a good reason after all NOT to accept Mr. Rawles’ OPINION on the matter as fact.

    Opinions are like ____, everyone has one.

    I think the morale of the story here is a FANTASTIC illustration as to exactly why we need SCOTUS to take the issue up and settle it once and for all.

  14. avatar
    misha September 17, 2009 at 8:26 pm #

    “why we need SCOTUS to take the issue up and settle it once and for all.”

    They did, in the Wong Kim Ark decision. The end.

  15. avatar
    nbc September 17, 2009 at 8:35 pm #

    You seem to be missing the point, Rawle’s observations reflect the thinking of those days and in fact, as Greg has show, there is little or no evidence that Vattel ever had any relevance here.

    When the Court in Wong Kim Ark found overwhelmingly that natural born means born in the US regardless of the citizenship of the parents, it reflected known common law, and legal thinking.

    Mr Rawle understands what so many understand namely that natural born is based on birth on US soil, and that dual nationality is an inevitable outcome of dueling laws of nations on citizenship. Which serves to show that the “Law of Nations” cannot be used to argue for citizenship because states have so many different interpretations of who are and are not citizens.

    Given that there is such overwhelming evidence, your suggestion that SCOTUS should take up the issue, ignores the fact that it already did so in Wong Kim Ark.

  16. avatar
    Greg September 17, 2009 at 8:46 pm #

    Rawle’s quoted in Lynch v. Clarke where the judge basically says it had never been an issue until the 1840s. And here’s what Wong Kim Ark said about Lynch v. Clarke:

    That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.

    So, when you assume that the Court didn’t just refer to Rawle, you’re proving the meaning of the word “ass u me”.

  17. avatar
    ballantine September 17, 2009 at 8:51 pm #

    The fact is that Rawle is one of the primary authorities the court has looked to to determine the original meaning of the constitution. In Heller, for example, Scalia cited Rawle at least seven times, stating, at one point, “In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, which analyzed the Second Amendment as follows.” He is merely one of the most respected early legal authorities confirming the natural born citizenship clause to be derivative of the English common law. The fact seems to be that no early authority had a different opinion, which is why the oral arguments in this case would last about 5 minutes. If you have authority to the contrary, please let us know.

  18. avatar
    ballantine September 17, 2009 at 11:24 pm #

    Bored and waiting for a deal to close, I looked up some early french translations of our constitution and the natural born citizenship clause if anyone is interested. Of course, no one translated it to Vattel’s language.

    “Nul, exceptĂ© un naturel nĂ© Citoyen , ou un Citoyen des Er.ats-Unis,Ă l’Ă©poque del’adoption de cette Constitution, ne sera Ă©ligible Ă l’office de PrĂ©sident.” Constitutions des treize etats-unis de l’Amerique Published 1792

    “Nul qu’un individu nĂ© citoyen des Etats-Unis, ou citoyen lors de l’adoption de cette constitution, ne sera Ă©ligible Ă la prĂ©sidence ” Authors France, Louis Tripier, Les constitutions françaises: depuis 1789 y compris les dĂ©crets du Gouvernement provisoire et la constitution RĂ©publicaine du 4 Novembre 1848 ; suivies de la constitution des États-Unis d’Amerique;, United States

    “Être citoyen des États-Unis. — C’est une chose Ă©galement nĂ©cessaire, que le prĂ©sident soit un citoyen nĂ© dans les États-Unis, ou un citoyen dĂ©jĂ naturalisĂ© Ă l’Ă©poque de l’adoption de la constitution.” Joseph Story, Commentaire sur la Constitution fĂ©dĂ©rale des États-Unis, pg. 259 Joseph Story (1843)

    “Nul, s’il n’est citoyen natif, ou s’il n’a Ă©tĂ© citoyen au 17 septembre 1787, et n’est ĂągĂ© de 35-ans au moins, ne peut ĂȘtre nommĂ© prĂ©sident. Ce magistrat commande les armĂ©es de terre et de mer et les milices des États, quand elles sont appelĂ©es au service de la confĂ©dĂ©ration.” François BarbĂ©-Marbois (marquis de), Histoire de la Louisiane et de la cession de cette colonie par la France aux États-Unis de l’AmĂ©rique Septentrionale: prĂ©cĂ©dĂ©e d’un discours sur la constitution et le gouvernement des États-Unis Author Publisher Impr. de Firmin Didot, pg. 28 (1829)

    “Aucun individu, autre qu’un citoyen nĂ© dans les États-Unis, ou Ă©tant citoyen lors de l’adoption de cette constitution ne peut ĂȘtre Ă©ligible Ă la place de prĂ©sident; aucune personne ne sera Ă©ligible Ă cette place, Ă moins d’avoir atteint l’Ăąge de trente-cinq ans, et d’avoir rĂ©sidĂ© quatorze ans aux États-Unis;” Thomas Jefferson, MĂ©langes politiques et philosophiques extraits des MĂ©moires et de la correspondance de Thomas Jefferson: prĂ©cĂ©dĂ©s d’un Essai sur les principes de l’Ă©cole amĂ©ricaine ; et d’une traduction de la Constitution des Etats-Unis, pg. 160 (1833)

    “Le prĂ©sident doit ĂȘtre citoyen nĂ© des États-Unis, avoir atteint l’Ăąge de 35ans, …” Publisher A.J. Killian, Dictionnaire gĂ©ographique universel, contenant la description de tous les lieux du globe intĂ©ressans sous le rapport de la gĂ©ographie physique et politique, de l’histoire, de la statistique, du commerce, de l’industrie, etc 1826

  19. avatar
    Lupin September 18, 2009 at 3:13 am #

    Here is a tidbit of information you may not be aware of:

    In 1757, Vattel penned probably the first novel ever written about a journey to the world of insects.

    In LES FOURMIS [The Ants], a man transfers his mind into that of an ant and discovers the new perspectives of a microscopic world.

    You can read the story in French here:

    http://books.google.com/books?id=hUQGAAAAQAAJ&pg=PA127&lpg=PA127&dq=Allegorie+Fourmis+Vattel&source=bl&ots=3UeV-nHF-G&sig=ozhTmI1ucGir8x45eSFkSOJ2Ekw&hl=en&ei=ETKzSpTFJsah4QbB8419&sa=X&oi=book_result&ct=result&resnum=4#v=onepage&q=&f=false

  20. avatar
    Lupin September 18, 2009 at 3:22 am #

    I’d like to re-ask the same question I asked a few days ago:

    Had Obama been born before 1868 (when the 14th Amendment was effected), from a US citizen parent and a non-US citizen parent, wouldn’t he have been indisputably a citizen (even a “Naturel” under Vattel)?

    Hypothetically, if the Marquis de Lafayette, during his famous visit to the US in 1824 (at Monroe’s invitation) had married an American woman and fathered a child, does anyone doubt that that child would have been a Naturel/Citizen?

    If so, I just wonder why we need to drag in the 14th A, Wong etc in this discussion?

  21. avatar
    Lupin September 18, 2009 at 3:24 am #

    Here is a translation:

    http://archiv.jura.uni-saarland.de/france/Law-France/const_us.htm

  22. avatar
    Greg September 18, 2009 at 8:30 am #

    Leo posted in his comments an attack on Rawle, basically saying he was a British sympathizer, so don’t believe anything he said. I responded, because I think he reads the posts before he deletes them, but I wanted to copy it here:

    ~~~

    You guys just LOVE the ad hominem, don’t you? Rawle’s British, so don’t believe him?

    The question isn’t whether Rawle was a good guy, or had British ties, the question is whether his VIEW was influential. His text-book on the Constitution was used in colleges across the country. Scalia quoted him 7 times in Heller. Here’s how Scalia described him:

    In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise…

    Joseph Story criticized his view of secession? We’re not discussing secession, are we? We’re talking about citizenship, and Joseph Story said this about citizenship: “Persons who are born in a country are generally deemed citizens and subjects of that country.” Story, Conflict of Laws, § 48. Story decided McCreery v. Somerville, (1824) 9 Wheat. 354, which assumed that children born here of aliens were citizens, otherwise it wouldn’t have come before the court.

    Kent wrote about citizenship, too:

    Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent

    So did Tucker in 1803:

    Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none…

    Kent, Story, Tucker AND Rawle were in agreement that unless you were an ambassador, your children would be citizens by birth, and none of them spoke of any kind of citizen by birth that would not be eligible for the Presidency.

  23. avatar
    Dr. Conspiracy September 18, 2009 at 9:10 am #

    Oh, no. The twofers would say the child could not be president and the nowongers say he would not be a citizen!

  24. avatar
    kimba September 18, 2009 at 9:29 am #

    Heh, NoWongerism! Is that a subset of Twoferism?

  25. avatar
    Greg September 18, 2009 at 9:38 am #

    Had Obama been white and the son of a foreigner, there probably wouldn’t have been a question. From the founding of the nation until the 1840s there was no question that the children of foreigners were citizens by birth. In 1844, some disgruntled and disinherited heirs tried to press the case that they should inherit the land of their relative because the person who did, Julia Lynch, was born of alien parents. The court there said that it was obvious that she was a citizen. Wong Kim Ark pointed to this obviousness in holding that the rule applied even if the parents could never become citizens.

    For black people, though, the question is complicated. Dred Scott, decided in 1857, said that black people couldn’t be citizens of the United States, period. They could be citizens of states, if those states allowed it, but not the US. That decision led, inexorably, to the Civil War.

  26. avatar
    Mario Apuzzo September 18, 2009 at 4:30 pm #

    Kettner states at page 188: “Few, perhaps, considered the question as carefully as did Peter Van Schaack, who retired to his New York farm in the winter of 1775-1776 to reread Locke, Vattel, Montesquieu, Grotius, Beccaria, and Pufendorf before taking his stand on independence.”

    It is probable that these were the key books that the Framers were studying when they were making plans for the new nation. While I see Vattel made the list, I do not see Blackstone there. Nor do I see any reference to his reading anything on the English common law. I guess the Founders really did not care too much about what the English common law had to say when it came to constituting the new nation.

    You have decided to use Kettner as sort of a gold standard on defining Article II “natural born Citizen.” Assuming your position as to what the book represents, I also searched in Kettner, a book on U.S. citizenship for the time period 1608 to 1870, for any references to Wong Kim Ark and Lynch v. Clarke and did not find any. I thought I would find them there because as you claim these two cases are the citizenship standard for who can be President of the United States as per the Founding Fathers’ intent in 1778. And that’s a big deal which should be in Kettner’s book, don’t you think?

  27. avatar
    Greg September 18, 2009 at 4:41 pm #

    I do not see Blackstone there. Nor do I see any reference to his reading anything on the English common law.

    Guess you didn’t read the chapter on Locke, then, did you? Since your last quote was from page 5, and this is found in the index, I would guess you haven’t gotten there yet. Don’t worry, the chapter on Calvin’s Case is pretty dense.

    Locke’s theories are described as pretty much in accord with Lord Coke’s.

    And Wong Kim Ark was decided in 1898, so might not have been mentioned in a book that described the evolution of citizenship from 1608-1870. Lynch v. Clarke, however, is mentioned on p. 250 (fn 5) for the proposition: “the power of passing laws on the subject of naturalization exclusively appertains to the general government.” It is also mentioned on page 318:

    The Constitution itself assumed the continued relevance of the concept of “natural-born citizen” in establishing qualifications for the presidency, and discussions and controversies over naturalization invariably measured the status of adopted aliens against that enjoyed by natives as their birthrigth. When the question was formally adjudicated with respect to the status of a white child born in the United States of temporarily resident alien parents, the familier principle was unhesitatingly affirmed: “Upon principle…I can entertain no doubt, but that by the law of the United States, whatever the situation of the parents, is a natural-born citizen.” (fn 117 – Lynch v. Clarke)

  28. avatar
    nbc September 18, 2009 at 4:44 pm #

    Bummer, again a book that does not support much of Apuzzo’s assertions.

    Why am I not surprised? History, legislative and judicial all point to the simple fact that English Common Law ruled the interpretation of natural born, not Vattel.

    Jus soli all the way home

  29. avatar
    Bob September 18, 2009 at 4:45 pm #

    11 minutes to debunk Apuzzo.

    A land-speed record?

  30. avatar
    nbc September 18, 2009 at 4:50 pm #

    And Mario seems to have his comments on Rhodes v McDonald… here

    Bummer eh Mario

  31. avatar
    nbc September 18, 2009 at 4:52 pm #

    Obama wants to be President and Commander in Chief. He therefore has to show that he is eligible for the position.

    There is no such requirement Mr Apuzzo. At least not legally speaking. Of course, remember that Judge Land’s ruling is embarrassing precedent for Mario.

    That Mario, like Orly fails to understand the Constitutional concept of ‘innocent till proven guilty’ is fascinating.

  32. avatar
    Greg September 18, 2009 at 4:55 pm #

    I guess the Founders really did not care too much about what the English common law had to say when it came to constituting the new nation.

    Since you’ve figured out the index, why don’t you compare the number of citations in this book for Vattel (1) to Blackstone (14), Calvin’s Case (23), Lord Coke (72), and Common Law (18).

    Or, you could try actually reading Chapter 6 – Pre-Revolutionary Debate and Chapter 7 – the Idea of Volitional Allegiance. You could also read Chapter 10 – Birthright Citizenship and the Status of Indians, Slaves and Free Negroes.

  33. avatar
    Gordon September 18, 2009 at 4:56 pm #

    I don’t think Mario’s reading extends much further than how to get a drunk driver off.

  34. avatar
    Mario Apuzzo September 18, 2009 at 5:04 pm #

    I stand corrected on whether Kettner cited Lynch. I guess I should not have relied on the book’s index.

    You have taken my words out of context in your cut and paste. I was referring to what Van Schaack read, not to whether Kettner discusses English common law.

    I like that part in Kettner on page 318 in the lead in to discussing Lynch where he says: “The Constitution itself assumed the continued relevance of the concept of the “natural-born citizen” in establishing qualifications for the presidency. . .”

    On your comment about why the book does not cite Wong Kim Ark because it was a case decided in 1898, the Supreme Court does discuss the development of citizenship during the colonial period and confirms the Lynch thesis, except to set Lynch straight that a child born in the U.S. to alien parents is a “citizen,” not a “naural born Citizen.” Clearly, Justice Grey [sic, Dr. C] recognized the difference between the two. I think the U.S. Supreme Court would trump Lynch. You would think that such an important case would have been discussed in the book.

  35. avatar
    Bob September 18, 2009 at 5:09 pm #

    But he automatically and without question in effect accepted Obama’s on-line image of an alleged “short-form” birth certificate (the COLB) without Obama or anyone on his behalf producing the same “original certificate of authentication from the government agency that supposedly has official custody of the document.”

    This isn’t the first time I’ve seen this argument.

    Here’s where Apuzzo is wrong (yet again): Judge Land made no ruling on the COLB because none was presented. Apuzzo faults the judge for making a nonexistent ruling on a nonproduced piece of evidence.

    Read the order again, Apuzzo, or the next $10k OSC may have your name on it.

  36. avatar
    Greg September 18, 2009 at 5:35 pm #

    Of course, you know that I think you are either deliberately misreading Wong or have only read a few sentences out of the case. It does NOT make a distinction between “citizen” and “natural born citizen,” in fact, Justice Gray finds that “natural born” when used for citizen has the same meaning as “natural born” when used for subject. For example, he quotes US v. Rhodes:

    All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.

    And the court describes Lynch’s decision as elaborately argued and decided on full consideration.

    The court had several opportunities to state that someone could be born here, become a citizen and not be a natural born citizen. They did not, because they did not believe that was possible. The rule of the case is this:

    Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.

    Your reading of Wong is an atrocious misreading, Mario. And you are on notice. Two attorneys have been ordered to show cause why they shouldn’t be sanctioned for bringing similar claims. I suggest you spend an hour or two re-reading Wong.

    There is no way a reasonable attorney can read Wong to make a distinction between a “citizen by birth” and a “natural born citizen.”

  37. avatar
    SFJeff September 18, 2009 at 5:48 pm #

    Mr. Apuzzo,
    I can’t decide whether you are lieing or just presenting a lawyers point of view for his client.

    “Obama wants to be President and Commander in Chief. He therefore has to show that he is eligible for the position.”

    Wrong- Obama is President already- this is settled.

    “This means he has to conclusively prove, among other things, that he is an Article II “natural born Citizen.””

    He already did this to the satisfaction of the Electoral College and the Congress. He is under no obligation to do so again.

    “But he automatically and without question in effect accepted Obama’s on-line image of an alleged “short-form” birth certificate (the COLB) without Obama or anyone on his behalf producing the same “original certificate of authentication from the government agency that supposedly has official custody of the document.” Why did Judge Land not apply the same evidence standard to Obama’s on-line COLB as he did to the Smith Kenyan Birth Certificate?”

    The judge specifically addressed this in his ruling- did you not read the ruling?

    “Finally, in a remarkable shifting of the traditional legal burden of proof, Plaintiff unashamedly alleges that Defendant has the burden to prove his “natural born” status. (Id. ¶¶ 136-138, 148.) Thus, Plaintiff’s counsel, who champions herself as a defender of liberty
    and freedom, seeks to use the power of the judiciary to compel a citizen, albeit the President of the United States, to “prove his innocence” to “charges” that are based upon conjecture and speculation. Any middle school civics student would readily
    recognize the irony of abandoning fundamental principles our Country was founded”

    Come on Mr. Apuzzo- I have found your comments here on these boards interesting, but you either didn’t read the ruling yourself, or you disagree with the fundamental principles of our Country- which is it?

  38. avatar
    Greg September 18, 2009 at 5:49 pm #

    I guess I should not have relied on the book’s index.

    Right before the index is a Table of Cases.

    You have taken my words out of context in your cut and paste. I was referring to what Van Schaack read, not to whether Kettner discusses English common law.

    Let me put it back into context:

    It is probable that these were the key books that the Framers were studying when they were making plans for the new nation. While I see Vattel made the list, I do not see Blackstone there. Nor do I see any reference to his reading anything on the English common law. I guess the Founders really did not care too much about what the English common law had to say when it came to constituting the new nation.

    That is what is clearly controverted by the book. It details, in 10 long and well-footnoted chapters, how American citizenship law evolved directly out of English Common Law. The number of citations in the index is just a clue. The fact that 3 of the chapters discuss “The English Background” should be another clue.

    You often do this, Mario, take a single sentence out of a larger work and twist it to mean the exact opposite. Because one guy in the book read Vattel and not Blackstone, the “Founders really did not care too much about what the English common law had to say when it came to constituting the new nation?” Really? It’s of a piece with your taking the one sentence out of Vattel. Or citing the one sentence out of Wise’s Treatise on Citizenship about the influence of Dutch law, while ignoring the fact that Wise specifically tells what areas Dutch law was influential in.

  39. avatar
    Mario Apuzzo September 18, 2009 at 7:40 pm #

    Greg,

    I don’t mind reading your comments when you make some sense. But don’t push it. You are dreaming about trying to paint my case as one even remotely subject to sanctions. Your have a warped sense of your position. You just can’t stand it that I have my position and that it makes better sense than yours. Your only hope in all this is convincing the Court that the English common law has any relevance in defining our national citizenship.

    Your are taking English common law and taking out of its proper context and trying to foist it upon the Founding Fathers when they simply had no further use for it. Simple as that. Wong used the English common law only to make Wong like one of the original citizens. Nothing more. Take that to your sanctions.

  40. avatar
    Bob September 18, 2009 at 7:44 pm #

    You just can’t stand it that I have my position and that it makes better sense than yours.

    Switch to comedy writing; it’ll be much more lucrative.

    Your only hope in all this is convincing the Court that the English common law has any relevance in defining our national citizenship.

    That’s exactly what Wong Kim Ark did over a hundred years ago.

    Your are taking English common law and taking out of its proper context

    Oh, the irony.

  41. avatar
    Mario Apuzzo September 18, 2009 at 7:46 pm #

    I would love for our U.S. Supreme Court to rule upon that comment about the “middle school civics student”. I have never heard of a judge talk about guilt or innocence in a civil case. Even more so I have never heard of a case where someone wants to qualify for a government position and I have to prove that he is not qualified rather than he or she having to show that he or she is qualified. I challenge you to cite me one case that supports such a proposition.

  42. avatar
    Mario Apuzzo September 18, 2009 at 7:50 pm #

    No, it is just common sense that if the guy is taking home a bunch of books, he probably will have the ones that everyone is reading and relying upon. After all, don’t you think the guy wants to be on the same page as everyone else. No one was interst in whta the the English common law had to say when it came to setting up the new nation. Simple as that.

  43. avatar
    Bob September 18, 2009 at 8:09 pm #

    I have never heard of a judge talk about guilt or innocence in a civil case.

    Do you see the quote marks the judge used? What do you those mean? (And paragraph 21 of the complaint does indeed “charge” Obama with being an “illegal usurper”).

    Even more so I have never heard of a case where someone wants to qualify for a government position and I have to prove that he is not qualified rather than he or she having to show that he or she is qualified.

    Because there no law that requires a candidate to demonstrate eligibility. And in a courtroom, the moving party bears the burden of proof.

  44. avatar
    SFJeff September 18, 2009 at 8:27 pm #

    “Even more so I have never heard of a case where someone wants to qualify for a government position and I have to prove that he is not qualified rather than he or she having to show that he or she is qualified.”

    See I am no lawyer- I take the judges remarks at face value. What you keep misrepresenting is that Obama wants to qualify for President, when he has already done so. As the judge noted- he is the defendent and the defendent doesn’t have the obligation to prove his case- the accuser does. And yes, I understood that in Middle School.

    Do you think a Defendent must prove he is innocent?

  45. avatar
    Expelliarmus September 18, 2009 at 8:56 pm #

    Obama already IS President. He doesn’t have to prove that he is eligible; he is PRESUMED eligible. (As is any other office holder).

    The burden would lie on whoever is challenging he office-holder’s qualification to show why the person is ineligible; however that challenge would also have to be brought in a forum or setting that is authorized and empowered to consider such challenges.

    For determining the qualifications of the President, the only such forum is Congress, and the only mechanism is impeachment.

  46. avatar
    Greg September 18, 2009 at 9:06 pm #

    Your only hope in all this is convincing the Court that the English common law has any relevance in defining our national citizenship.

    I don’t have to convince the court of anything. I haven’t brought a case trying to convince a court that 700 years of history defining the term “natural born” is a figment of their imagination. I’m not trying to convince this Supreme Court that the case they’ve cited something like 20 times in the past 100 years, that has been cited almost 350 times by courts in general, that 7 of the sitting Justices have cited approvingly, doesn’t mean what everyone, including the dissent in that case thought it meant!

    Here’s a clue for you. The Eagle Foundation, the Claremont Institute and all the other groups that filed amici briefs arguing that Hamdi wasn’t a citizen because his parents were just migrant workers – none of them will touch this nonsense. Why? Because it’s nonsense.

  47. avatar
    Greg September 18, 2009 at 9:14 pm #

    Wigmore on Evidence: “The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion.”

    Who is the plaintiff in your case, Mario? You or the President?

    Obama took his case to the American people and he met his burden of persuasion. You want to haul him into court with you as a plaintiff, then shift the burden of proof onto him so that he can do it to your satisfaction.

    Since we’re changing rules, does he have to prove it to a higher standard now, too? Not just more likely than not, but beyond all reasonable doubt? Hell, since we’re pulling rules out of the air, let’s make him prove it beyond all possible doubt. To a metaphysical certainty.

    There aren’t many types of cases where the plaintiff has to meet no burden, but the defendant has to disprove all allegations.

    Where did you graduate from law school again?

  48. avatar
    Greg September 18, 2009 at 9:21 pm #

    After all, don’t you think the guy wants to be on the same page as everyone else. No one was interst in whta the the English common law had to say when it came to setting up the new nation

    See. That one sentence, in a book that has direct examples of Founders quoting English Common law, means that no Founders were interested in English Common Law.

    Thomas Jefferson citing Calvin’s case. Not important. Van whathisname taking home Vattel to read over the holiday – that’s key!

    300 and some odd pages, almost all of them citing some part of English common law or another. 30% of the book dedicated directly to setting the ground work for understanding English Common law. Nope. All worthless, because in one sentence on page 188, the author talks about Van whatshisname reading Vattel.

    Fine. Whatever.

    Did you see he took home Locke as well. This is going to shock you, but there is more to this book than page 188. One of the chapters is about Locke. Locke is, get this, a British political philosopher. His philosophy isn’t that different from Calvin’s case. You’d know this if you had read more than that one sentence on page 188.

  49. avatar
    Dr. Conspiracy September 18, 2009 at 11:12 pm #

    Mr. Apuzzo,
    The sanctions you risk have nothing to do with your natural born citizen argument (which perhaps you have forgotten is little more than a footnote to the massive tome that is the second amended complaint in Kerchner v. Obama). The sanctions are for the irresponsible and outrageous birther content consisting wholly of discredited and fantastic speculation.

    Judge Robertson in DC, and now Land in Florida have made it clear that the Federal courts are not going to be used as a political publicity tool (which exactly describes Kerchner v. Obama). Judge Land said (in reference to Orly Taitz):

    Although the First Amendment may allow Plaintiff’s counsel to make these wild accusations on her blog or in her press conferences, the federal courts are reserved for hearing genuine legal disputes and not as a platform for political rhetoric that is disconnected from any legitimate legal cause of action.

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

    Mario Apuzzo: You just can’t stand it that I have my position and that it makes better sense than yours.

    Methinks Mario has been taking troll lessons.

  51. avatar
    misha September 18, 2009 at 11:35 pm #

    “Where did you graduate from law school again?”

    Maybe he went to Taft, too.

  52. avatar
    Dr. Conspiracy September 18, 2009 at 11:36 pm #

    Now, now. Let’s play nice.

  53. avatar
    Dr. Conspiracy September 18, 2009 at 11:37 pm #

    I have a feeling that Mr. Kettner will not be receiving a Christmas card from Mr. Apuzzo this year.

  54. avatar
    Dr. Conspiracy September 18, 2009 at 11:45 pm #

    Mario Apuzzo: Kettner states at page 188: “Few, perhaps, considered the question as carefully as did Peter Van Schaack, who retired to his New York farm in the winter of 1775-1776 to reread Locke, Vattel, Montesquieu, Grotius, Beccaria, and Pufendorf before taking his stand on independence.”

    Yes, but why did Peter Van Schaack take those books home? Was he running for President? No. He wanted to know whether he could choose which side he would be on in the Revolutionary War: Could citizenship be forced upon an unwilling adult by a change in government.

    Those of us who have actually read Kettner (I’m about 2/3 through it) know that, of course, Blackstone, and Coke, and Clarke are there (Wong is out of the time period for inclusion). When I finish the book, I will collate all those GREEN HIGHLIGHTS I made (ones very unfavorable to your position by the way) and dump them into an article.

  55. avatar
    Benji Franklin September 19, 2009 at 12:25 am #

    misha: “Where did you graduate from law school again?”Maybe he went to Taft, too.

    Dear Misha,

    Perhaps you mispelled a word – could you have meant, “Maybe he went too Taft, too.” ?

    After all, when one only virtually goes to law school, one virtually becomes only an attorney almost at law.

    BenjiFranklin

  56. avatar
    Mario Apuzzo September 19, 2009 at 12:57 am #

    In Wong Kim Ark, the question was whether we were going to let Wong be a member of American society. Justice Gray looked at Wong as though we were back in time to the pre-founding days. He in effect asked would we allow him to be a citizen then? Hence, he used the English common law to answer the question because that is the law the colonies used at the time.

    But being a “natural born Citizen” under Article II is a completely different matter. Justice Gray did not deal with that problem. Hence, his decision has nothing to do with being an Article II “natural born Citizen.” That definition is not found in the English common law but rather in the law of nations.

  57. avatar
    Mario Apuzzo September 19, 2009 at 1:00 am #

    Since you read so much of that book, maybe you can tell me how the Founders used the English common law to constitute the new Constitutional Republic.

  58. avatar
    Bob September 19, 2009 at 1:00 am #

    That definition is not found in the English common law but rather in the law of nations.

    Not only is that definition found in English common law, but in the exact English common law that the Wong Kim Ark court cited.

    Seriously: get into comedy; you are hilarious.

  59. avatar
    Mario Apuzzo September 19, 2009 at 1:02 am #

    Dr. C.

    I am starting to lose respect for you. You already made a really big blunder and maybe you will find out about it.

  60. avatar
    Mario Apuzzo September 19, 2009 at 1:16 am #

    Bob: That definition is not found in the English common law but rather in the law of nations.Not only is that definition found in English common law, but in the exact English common law that the Wong Kim Ark court cited.Seriously: get into comedy; you are hilarious.

    Hey Bob,

    Keep dreaming that Article II says “citizen” and not “natural born Citizen.” Oh, what a shame you are forced to read those two little words out of that glorious document. You are the one who is hilarious suggesting that the U.S. Supreme Court would just say those two little words do not exist. You are the one who should take up comedy for suggesting to anyone with some intelligence that what the 14th Amendment says is the same as what Article II says. Intelligence does not include anyone with a political agenda.

  61. avatar
    Bob September 19, 2009 at 2:00 am #

    Keep dreaming that Article II says “citizen” and not “natural born Citizen.”

    And keep dreaming Wong Kim Ark rejected the notion that the Framers relied upon de Vattel.

    Oh, what a shame you are forced to read those two little words out of that glorious document.

    Neither I nor the Wong Kim Ark court did.

    You are the one who is hilarious suggesting that the U.S. Supreme Court would just say those two little words do not exist.

    “Citizen” and “natural born citizen” have separate meanings. Didn’t they cover this in your law school? Because there’s no case that ever described this mythical born-in-the-United-States-but-not-natural-born status that only you see.

    You are the one who should take up comedy for suggesting to anyone with some intelligence that what the 14th Amendment says is the same as what Article II says.

    As I never said that, perhaps it is your intelligence that is questionable.

    Intelligence does not include anyone with a political agenda.

    Oh, the irony.

  62. avatar
    Mario Apuzzo September 19, 2009 at 2:08 am #

    That’s funny. You say I did not read Judge Land’s ruling. I say you did not read my article.

  63. avatar
    Mario Apuzzo September 19, 2009 at 2:11 am #

    Obama is an employee of the People. He has to show he qualifies for the job. I am amazed how you play little games with our Constitution.

  64. avatar
    misha September 19, 2009 at 2:36 am #

    “Perhaps you mispelled a word – could you have meant, “Maybe he went too Taft, too.”?”

    Ah, syntax. How about this: Maybe he too, went to Taft.

    There. Cleaned up.

  65. avatar
    Lupin September 19, 2009 at 2:37 am #

    You wrote:

    “But being a “natural born Citizen” under Article II is a completely different matter. Justice Gray did not deal with that problem. Hence, his decision has nothing to do with being an Article II “natural born Citizen.” That definition is not found in the English common law but rather in the law of nations.”

    Assuming that the Law of Nations is even relevant in this case (which I doubt), its definition of a Naturel is a person whose father is a US citizen, later footnoted to precise that a mother would fulfill that condition as well.

    Since Obama’s mother is a US citizen, Obama is a Naturel according to the Law of Nations.

    Other than the father/mother thing, this is clear and unambiguous.

    If you are relying on the Law of Nations for your argument, you cannot possibly claim in good faith that Obama is not a Naturel, and I hope that if you do this (or have done this), you will be sanctioned for it.

    Leaving legal matters aside, I would like any birther, especially lawyers, who claim that their actions are motivated by their concern for the rule of law to show us what they have done during the last 8 years to object to the systemic trampling of the Law, Treaties, etc. by the Bush administration, even if it is only posting on blogs, etc.

    Any google search will turn up comments that I (as Lupin) have posted as early as 2003, perhaps 2002, on Bill Montgomery’s Whiskey Bar blog, later on Steve Gilliard’s NewsBlog and Markos Moulitsas’ Dayly Kos that expressed my concern over the many unlawful actions of the US Government.

    I believe that anyone who didn’t take a stand on these issues during the last eight years and claim to do so now is a hypocrite and a liar.

  66. avatar
    Greg September 19, 2009 at 5:58 am #

    Keep pretending that “natural born” wasn’t a term used since the 1300s and that there’s not a whit of evidence the founders intended to change that meaning.

  67. avatar
    Greg September 19, 2009 at 10:32 am #

    Since Wong found that the law of nations didn’t influence our definition of citizenship, that the writers on international law didn’t agree with one another about its definition and the practices of other nations didn’t support the notion that jus sanguinis WAS the law of nations – I’m not sure how you’re helped by the law of nations!

    There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there was any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion.

    In fact, Wong spends a significant amount of time explaining that citizenship by descent is NOT found in the definition of citizenship, but is the result only of legislative enactments! Citing Binney’s influential pamphlet on children born overseas to American citizens, Gray writes:

    There is nothing in the statute which would justify the conclusion that it is declaratory of the common law in any but a single particular, namely in regard to the children of the King; nor has it at any time been judicially held to be so. . . . The notion that there is any common law principle to naturalize the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not, and never was, any such common law principle. Binney on Alienigenae, 14, 20; 2 Amer.Law Reg.199, 203.

    Indeed, wrote the Court “the great weight of the English authorities, before and since he wrote, appears to support his conclusion.” citing Calvin’s Case, 7 Rep. 17a, 18a; Co.Lit. 8a, and Hargrave’s note 36; 1 Bl.Com. 33; Barrington on Statutes, (5th ed.) 268; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; I: ord Chancellor Cranworth, in Shedden v. Patrick, 1 Macq. 535, 611; Cockburn on Nationality, 7, 9; De Greer v. Stone, 2 Ch.D. 243, 252; Dicey Conflict of Laws, 17, 741. In fact,

    “The acquisition,” says Mr. Dicey, (p. 741) “of nationality by descent is foreign to the principles of the common law, and is based wholly upon statutory enactments.

    So, let’s grant that Wong, like all other citizenship cases hasn’t decided the definition of natural born citizen, since none of them deal with presidential eligibility. Wong, at least, completely destroys the “Law of Nations” as source material for finding that definition, since it finds that there IS no Law of nations. It also destroys the Common Law as a source for finding YOUR definition, since citizenship by descent was foreign to the common law – it was an entirely statutory construction.

    This is why I recommend you spend significantly more time reading the Wong decision. You can’t simply read that one sentence that Leo repeats (and distorts). Wong does a lot of things that are crucial to its decision, and thus, not dicta, things that cripple or destroy your argument.

  68. avatar
    Greg September 19, 2009 at 10:37 am #

    If you limited your court case to this issue:

    Obama cannot be President because his father was not a permanent domiciliary of the United States.

    You would have a colorable argument. It’s a losing argument, given the Miller v. Albright decision, but it’s at least colorable. Demanding two citizen parents, talking about jus sanguinis as the only way to become “natural born,” discussing a fictional distinction between native-born and natural-born citizens, discussing the loss of citizenship by actions taken by the parents of a six to 10 year-old, bogus claims about travel restrictions and citations to wikipedia as if they’re by Obama, these are bogus, frivolous and unsupportable claims that have lead your colleagues to have to show-cause for why they shouldn’t be sanctioned.

  69. avatar
    Greg September 19, 2009 at 10:40 am #

    Obama IS President. He is presumed to be eligible.

    In my state, if you are in the front seat of your car, you are presumed to be operating it. Thus, an OUI defense lawyer has to disprove the operation of the vehicle if that’s the way he chooses to proceed.

    You have to disprove the President’s eligibility.

    Burden of proof. You’re the plaintiff. Prove your case!

  70. avatar
    Greg September 19, 2009 at 10:53 am #

    You apparently have the book, so you could read it, you know. But, here’s just one example, from my mock merits brief of how British Common Law influenced the Founders:

    Similarly, “natural born” was a specific phrase that had a specific meaning that would be understood by legal practitioners at the time. It has been used to mean born anywhere within the Kingdom since time immemorial in England. It was confirmed that this was the meaning of the term in 1368. In 42 Edw. III, c. 10 (1368), parliament affirmed that infants born in Calais and “elsewhere within the lands and seignories pertaining to the king beyond the sea” could inherit “as other infants born within the realm.” A bill introduced in 1580 (23 Eliz. I), which failed, would have established that children born in England whose parents were aliens should not be deemed natural-born subjects. Other than that failed attempt to change the common law, there is no record of any other attempt to dispute the notion that a child born in England was a subject of England regardless of the citizenship of the parents.

    While the term “natural born” was used universally in Britain to encompass those born within the realm, in 1608, Lord Coke gave a theoretical underpinning to that definition. Calvin’s Case, 7 Co. Rep. 1a (1608). In Calvin’s Case, Lord Coke considered that there were four types of allegiance which were possible within the English system – natural, acquired, local and legal. Natural allegiance was the focus of the case, and Lord Coke spent the majority of the decision discussing how this allegiance arises. Broadly defined, this allegiance was the “true and faithful obedience of the subject due to his sovereign. This ligeance and obedience is an incident inseperable to every subject: for as soon as he is born, he oweth by birth-right liegeance and obedience to his sovereign.” Calvin’s Case, 4b. The sovereign owed a reciprocal duty to his subjects – “for as the subject oweth to the king his true and faithful ligeance and obedience, so the sovereign is to govern and protect his subjects.” Calvin’s Case, 12b-13a, 4b. While the obligations were reciprocal, it was not a contractual relationship – a natural-born citizen would still owe his allegiance to the sovereign even if the sovereign withdrew his protection, or he, through conquest, came under the protection of another sovereign. In this case, he would be “ad fidem utriusque regis” (in allegiance to both kings). Calvin’s Case, 27b. However, despite owing natural allegiance to King James, the Scottish postnati, those born after his ascension to the English throne, owed their allegiance to the King, but were not bound by the acts of Parliament.

    Calvin’s Case was extremely influential in England in subsequent cases about citizenship:

    [W]ell into the nineteenth century a citation of Coke’s report of the case was virtually mandatory in any argument, opinion, commentary, or treatise that involved questinos of allegiance, alienage, naturalization, or subject status. Coke was not cited merely to be explained away or “distinguished” into irrelevance. Rather the maxims of Calvin’s Case and the authority of Coke shaped the outcome in cases that quite literally involved matters of life and death. James H. Kettner, The Development of American Citizenship 1608-1870, 45 (1978) (hereinafter, “Kettner.”)

    Lord Coke’s theory of natural allegiance was challenged by John Locke who disputed Coke’s assertion that the natural allegiance would arise even in a stateless society. Locke agreed, however, that when there was a government, natural allegiance would arise upon birth, and that allegiance was perpetual. Kettner, 54. Lockean theory, since it imagined a stateless society with no natural allegiance, could also imagine the loss of the natural allegiance upon, at least, the total destruction of the state. This conception of the ending of the natural allegiance, but also the continuity of how natural allegiance arises, was enshrined in Blackstone:

    Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth. For, immediately upon their birth, they are under the king’s protection; at a time, too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled or altered by any change of time, place or circumstance, nor by any thing but the united concurrence of the legislature…. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former; for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of the prince to whom it was first due. Tucker, ed. Blackstone’s Commentaries, I:2, 369-370.

    One of the critical causes of the revolution was whether the American colonies would be bound by acts of Parliament. Taxation without representation, the rallying cry of the American cause, was precipitated because American colonists believed they should not be subject to the acts of Parliament, in which they had no representation. Calvin’s Case was cited by both British and American thinkers in justifying their sides in the run-up to the Revolution. Lord Mansfield cited Coke as late as 1774 to prove that any “country conqured by British arms becomes a dominion of the King in the right of his Crown; and, therefore, necessarily subject to the Legislature, the Parliament of Great Britain.” Campbell v. Hall, 1 Cowper 204, 208 (1744). Calvin’s Case was, perhaps, more important to the Americans in making their case that they were not bound by the actions of Parliament. See Mullett, “Coke and the American Revolution,” Economica, XII, 462 (1932). The Massachusetts House, for example, analogized their situation to that of Scottland and England as described in Calvin’s Case. Just as the Scottish citizen owed allegiance to King James, but could not be bound by the actions of the British Parliament, so, too, the American colonies owed allegiance to the king, but were not governed by the laws of parliament. House response to Hutchinson’s opening speech, Jan. 26, 1773. Reverend Andrew Burnaby (Travels through the Middle Settlements in North America, in the Years 1759 and 1760. With Observations upon the State of the Colonies, 2d ed., 24 (1968, orig. pub. 1775)), and Governor Francis Bernard (Bernard to Lord Barrington, Nov. 23, 1765, quoted in Koebner, Empire, 151) also referred to Calvin’s Case. John Adams wrote:

    I beg leave to observe here that these words in the foregoing adjudication [Calvin’s Case], that the “natural person of the king is ever accompanied with the politic capacity, and the politic capacity as it were appropriated to the natural capacity,” neither imply nor infer allegiance or subjection to the politic capacity; because in the case of King James I, his natural person was “accompanied” with three politic capacities at least, as king of England, Scotland, and Ireland; yet the allegiance of an Englishman to him did not imply or infer subjection to his politic capacity as king of Scotland. Adams, Novanglus IX, Works of John Adams, IV, 143.

    The colonists did not attempt to argue their way out of the natural allegiance described in Calvin’s Case. They embraced that allegiance but described their situation as an exact analogy to Scotland. Alexander Hamilton wrote:

    The act of parliament is not the efficient cause of his being the King of America: It is only the occasion of it. He is King of America, by virtue of a compact between us and the Kings of Great-Britain. These colonies were planted and settled by the Grants, and under the Protection of English Kings, who entered into covenants with us for themselves, their heirs and successors; and it is from these covenants, that the duty of protection on their part, and the duty of allegiance on ours arise. Hamilton, The Farmer Refuted: or A more impartial and comprehensive View of the Dispute between Great-Britain and the Colonies, Intended as a Further Vindication of the Congress, 91 (1775). emphasis added

    Benjamin Franklin, too, made the analogy to the allegiance owed by the Scot, saying the American colonies were “extrinsic dominions of the King,” and like pre-Union Scotland, they were connected with England only by their common allegiance. Bigelow, ed. Complete Works of Franklin, IV, 310.

    Despite their intimate familiarity with the critical case of English Common Law that established the concept of natural allegiance and provided the theoretical underpinnings of the natural born subject, the Founders took no opportunity to distinguish their support of Calvin’s Case. No Founder is heard to reject the concept of natural allegiance. This silence speaks volumes.

  71. avatar
    Greg September 19, 2009 at 12:07 pm #

    A Treatise on the American Law of Elections

    “The presumption always is, that a person chosen to an office is qualified to fill it, and it is never incumbent upon him to prove his eligibility”

  72. avatar
    Greg September 19, 2009 at 2:12 pm #

    Interesting tidbit in an article entitled, “Legal Historian on the United States Supreme Court: Justice Horace Gray, Jr. And the Historical Method” by Robert Spector, 12 Am. J. Legal History 181, 185-186 (1968):

    “Except for the cantankerous Field, he seemed to get along well with his associates. Field disliked him among other reasons because Gray opposed him on so many divided opinions, and employed historical supports for his arguments rather than the natural law which Field preferred.”

    Justice Field decided In re Look Ting Sing a 9th Circuit case that also held the children of Chinese aliens were citizens. He heard the oral arguments in Wong, but resigned before the opinion were written.

  73. avatar
    SFJeff September 19, 2009 at 5:00 pm #

    So Mario- is it possible for you to answer a straight question with a straight answer?

    Do you think it is a defendents responsibility in a Court Case to prove himself innocent? This is a simple yes or no question.

  74. avatar
    Benji Franklin September 19, 2009 at 9:40 pm #

    Mario Apuzzo: Obama is an employee of the People.He has to show he qualifies for the job. I am amazed how you play little games with our Constitution.

    Dear Mario,

    We the People have hired many other employees to conduct the elections in compliance with the Constitution. Obama has shown every state’s election officials he is Article 2 eligible to the highest same standard customarily demanded of all previous Presidential candidates. Your complaint actually hinges on a charge that Obama has fraudulently evaded the vetting intent of the procedures customarily used, a criminal charge which requires evidence from the accusers.
    It is ludicrous to suggest that Obama must satisfy any or every citizen’s personal higher standard of proof when he has already satisfied the conventionally reasonable standard of proof evenly conceived and enforced in the name of the people by their representative government. Any standard of proof, even the one(s)you would trust, is or are subject to a conceivable charge of fraudulent evasion, for which evidence would have to be presented by the accuser.

    Your personal standard of proof would require a narrower interpretation of “Natural Born Citizen” than can be found in any even-handedly surveyed consensus of historically contemporaneous or current legal opinion. As evidence, I point to the otherwise jarring fact that not a single U.S. state’s Presidential Candidate registration forms are able to specify the requirements that would satisfy your Constitutional interpretation of Natural Born Citizen.

    In fact, no interpretation of NBC requirement check-list of any kind appears on any of the forms. That’s because the legal advisors of every state realized it would be imprudent to attempt to functionally change the meaning of Article 2’s eligibility requirement by arbitrarily narrowing its historical ambiguity. Proof of that statement is in the otherwise absurd registration standard which instead IS implemented by every state for the office of Pres/VP, merely asking a candidate to AFFIRM (by their own inferred interpretation) whether they meet ALL the Article 2 eligibility requirements!

    Historical ambiguity cannot be erased or resolved by biased selective readings and parsings, no matter how righteously you worship at your own imagined public altar.

    That record will eventually force you to join Donfrio in trying to harm Obama by claiming NBC is ambiguous instead of claiming it may only be interpreted to your liking. He opined that if we stipulate that NBC is historically ambiguous, Obama should be charged with perjury for affirming his Natural Born Citizenship, because with that uncertainty, no candidate could possibly swear they met the Founder’s eligibility requirements.
    Another in an endless series of heretofore unheard of hypothetical “Constitutional” eligibility hoops through which ONLY Obama, must dance to his imagined ruin.

    The hypocrisy of your crowd is frightening; you would make a vindictive plaything of our Constitution in the name of its defense. Fortunately, because you preen for the applause of racists and the otherwise hateful, the menace of your superior intellect has been betrayed by the transparency of your shallow commitment to society. The Constitution has nothing to fear from the dislikes of you.

    BenjiFranklin

  75. avatar
    Dr. Conspiracy September 19, 2009 at 10:42 pm #

    Mario Apuzzo: Obama is an employee of the People. He has to show he qualifies for the job. I am amazed how you play little games with our Constitution.

    I cannot express how offensive I find this remark, and I feel that my blog is made dirty by its appearance. But I will let it stand to your own discredit. You lie so easily.

  76. avatar
    Dr. Conspiracy September 19, 2009 at 10:47 pm #

    While there was some ultimate value in changing my children’s soiled diapers, I do not think there is any value in reading your articles beyond the first encounter with that unmistakable odor.

    When a person in authority molests a child, that is a specially heinous crime and so is a lawyer using their training and professional credentials to rape the public mind with lies and misrepresentations.

  77. avatar
    Dr. Conspiracy September 19, 2009 at 10:51 pm #

    Mario Apuzzo: Keep dreaming that Article II says “citizen” and not “natural born Citizen.

    Notice that when he is about to lose the argument, he just makes up fictitious misrepresentations of what others are saying and argues against that.

  78. avatar
    Dr. Conspiracy September 19, 2009 at 10:58 pm #

    Mario Apuzzo: I am starting to lose respect for you. You already made a really big blunder and maybe you will find out about it.

    If I find out that I have made a blunder, I will admit it, and fix it. That is what is called integrity. I only claim to be honest, not inerrant.

  79. avatar
    Dr. Conspiracy September 19, 2009 at 11:01 pm #

    Mario Apuzzo: That definition is not found in the English common law but rather in the law of nations.

    What law, which nation?

  80. avatar
    Lupin September 20, 2009 at 1:55 am #

    I think he meant Vattel.

    The only problem is, with one parent a US citizen, Vattel would conclude Obama *is* a Natural-Born Citizen.

    Methinks Appuzzo is cornered on this one.

  81. avatar
    BenjiFranklin September 20, 2009 at 2:41 am #

    Dear Doctor,

    Excellent comment; I am still gaining respect for you. And it was on this topic not long ago that Mario was himself “playing little games” with the Constitution by trying to mislead readers into thinking the “Law of Nations” mentioned in the Constitution was actually Vattel’s book.

    Mario’s ethics celebrate persuasive advocacy over convincing honesty. He glorifys the Framers’ supposed concern about avoiding foreign influence, based on an unimpressively unpublic “hint” from John Jay referring only to eligibility of the proposed U.S. Commander-in-chief before the Convention had considered combining that position with the Presidency. But Mario never reconciles how his claims for the fidelity of the Framer’s supposed serious concern about avoiding foreign influence upon the Presidency, is compatible with the superior right the all-male Convention preserved for themselves and every other male U.S. citizen – that of choosing any female citizen of any nation on earth to wed, be she even the Queen of England or her Daughter stepping off the boat in Boston harbor, and, after a hurried dock wedding, siring in her before the door to their dockside inn room could slam on their immodesty, an Article Two Natural Born Citizen son! Male supremacy of the time not withstanding, this carefully ignored gender-favoring, permitted foreign influence, obviously outraged any common sense interpretation of avoiding foreign mischief, by standing concern for such influence completely on its circumsized end.

    Accordingly with this allowable application, Mario’s interpretation here hypocritically glorifies the righteous purpose he alleges the Framers were faithful to which in reality manifested as the Framers being willing to take John Jay’s “hint” only if as a consequence, the Constitution was willing to take a joke.

    Thank you for your continuing labors here, Doctor C.

    BenjiFranklin

  82. avatar
    Dr. Conspiracy September 20, 2009 at 8:14 am #

    The framers were indeed concerned about foreign influence, and not just them. Rumors were flying about who would be chosen to lead the country. No one wanted the importation of some “foreign royal” or a foreigner who would come to America and bribe himself into office. The solution: to require that the president be a citizen from his birth and to have lived here 14 years.

    Barack Obama, unfortunately for the nobots, fits the qualifications. If they don’t like it, vote for someone else–don’t try to disenfranchise the majority.

  83. avatar
    misha September 20, 2009 at 9:22 am #

    “don’t try to disenfranchise the majority.”

    That will spoil all the fun.

  84. avatar
    Epectitus September 20, 2009 at 2:12 pm #

    Clearly, Justice Grey recognized the difference between the two.

    Why is it that Birthers can never seem to spell Justice Gray‘s name properly? Do they give it the British spelling deliberately to try and make him seem foreign?

  85. avatar
    Epectitus September 20, 2009 at 2:24 pm #

    Between Apuzzo and Donofrio, I gotta tell you. I am seriously considering dropping the terminal vowel from my name.

  86. avatar
    myson September 20, 2009 at 4:54 pm #

    I just read something written by Mario on CW, & now i get why he’s regarded here as intellectually dishonest !!! (I usually dont bother to read his ramblings)
    He argues that Wong case doesnt apply to NBC but still wants it overturned, Why ? if a case doesnt address your issue you leave it or simply state that the case does isnt relevant to the issue but calling for it to be overturned when u say its irrelevant is dishonest as to your true motives.
    Anyhow whats his reason for wanting it overturned, the decision overturns a statute that the court ruled is unconstitutional !!!
    What is the job of the USSC, is it not to ensure that when an unconstitutional statute or provision is enacted same when brought b4 it is overturned or discarded ????
    or is Mario arguing that ALL laws whether unconstitutional or not must be respected by the court simply becos it was enacted as a law ? If that becomes the situation then u (in the US ) dont need a court system or a constitution anyone, whatever the legislature passes as law will be law.
    If this had come from a stoopid lawyer like Orly i can understand but from Mario this is intellectual dishonesty & a lawyer so blinded by passion for a cause now make elementary mistake just to appear relevant to his followers.
    Mario reasoning is dishonest. I wish Mario gets to argue this b4 the USSC & watch them destroyed him trying to explain to them that they cant rule a law or provision unconstitutional

  87. avatar
    Mario Apuzzo September 20, 2009 at 8:11 pm #

    Given the level of you intelligence, I beseech thee, please do.

  88. avatar
    Dr. Conspiracy September 20, 2009 at 8:23 pm #

    ROFL! You couldn’t make this stuff up.

  89. avatar
    Mario Apuzzo September 20, 2009 at 8:40 pm #

    Myson,

    Wong does not overturn any unconstitutional statute. If it does, please provide the citation of what statute that is. Justice Gray just decided if Wong was a “citizen of the United States” under the 14th Amendment by applying old English common law that was in vogue during the colonial period.

    In declaring Wong a U.S. citizen, Justice Grey [sic, Dr. C] went against the will of Congress, the Executive, and the People, not to mention that he ignored our treaty with China, a supreme law of the land. So, Justice Grey [sic, Dr. C] made Wong a U.S. citizen even though the U.S.A and China said that he should not be one. That sure is a lot of power for an unelected branch of government to wield. Some argue a violation of separation of powers when I ask for the Court to intervene regarding Obama. What ever happened to separation of powers in Wong? Also, the plaintiff in Wong was the United States of America should that little fact have slipped by you.

  90. avatar
    kimba September 20, 2009 at 9:37 pm #

    “Judge Gray decided”

    He was a one-man majority? And the other 5 justices who voted with him were chopped liver? Yes, thought not.

    The Chinese Exclusion Act was a law, not a treaty with China. One role of the Supreme Court is to overturn laws and executive action it deems unlawful or unconstitutional. But they didn’t overturn the Chinese Exclusion Act in WKA, they found it did not apply to Wong. Since Wong was a citizen from birth under the 14th amendment, the Chinese Exclusion Act did not apply to him. Citizen From Birth.

    The Supreme Court has found many times in a way that is contrary to the “will” of the people, Congress, voters, the majority. One example is Brown v Board of Education. Just because the majority holds a particular view, doesn’t necessarily make it lawful or constitutional.

    There isn’t just separation of powers, there is the check and balance role as well. In Wong, the SC checked the Congress. In your case against Obama, the judiciary doesn’t have the power to interfere in a right/duty that is given to the legislative in the Constitution.

    Rewriting junior high civics again?

  91. avatar
    Greg September 20, 2009 at 9:50 pm #

    The court also overturned the will of Congress, the executive and the “People” when they said that the races could intermarry and when they said that schools could be integrated.

  92. avatar
    ballantine September 20, 2009 at 9:54 pm #

    “In declaring Wong a U.S. citizen, Justice Grey [sic, Dr. C] went against the will of Congress, the Executive, and the People, not to mention that he ignored our treaty with China, a supreme law of the land. So, Justice Grey [sic, Dr. C] made Wong a U.S. citizen even though the U.S.A and China said that he should not be one.”

    Honestly, I have no idea what you are talking about. If you actually read the debates of the 39th congress, you would see the will of such Congress, and the plain meaning of the language of the 14th amendment, was to codify the English common law rule based upon the locality of birth, exactly as Wong stated. Obviously, such amendment would supersede any prior or later acts of non-republican Congresses. Not really that hard.

  93. avatar
    Mario Apuzzo September 20, 2009 at 11:16 pm #

    Greg,

    Then you do admit that the Court did what I said it did. But you err in the type of example that you provide. Issues of race impact equal protection, a constitutional right. Can you cite for me what constitutional right Congress, the Executive, and the People violated in arguing that Wong was not a citizen of the United States? Your analogy would lead us to the absurdity. Let us just throw away our immigration laws, too.

  94. avatar
    dunstvangeet September 20, 2009 at 11:31 pm #

    The fourteenth Amendment, Mario.

    “All persons born … in the United States and subject to the jurisdiction thereof are citizens of the United States.” Not that hard to understand.

    Basically, what you’re stating is that the court should have ignored what the constitution said, just because Congress and the Executive Branch said that it should?

  95. avatar
    Dr. Conspiracy September 21, 2009 at 12:02 am #

    Mario Apuzzo: Can you cite for me what constitutional right Congress, the Executive, and the People violated in arguing that Wong was not a citizen of the United States?

    Your question is bad two ways.

    First, you make “arguing” the action causing the violation. The Executive making an argument is nothing more than making an argument. The violation of Wong’s rights was the result of the action of the Executive, the action of keeping Wong from entering the country.

    Your second fault was to create the false and misleading impression that it was the “people”, the “Congress” and the Executive who violated Wong’s rights, making it seems that the courts went against the will of three others. In fact, only the Executive violated Wong’s rights by wrongly applying the racist Chinese Exclusion Act to a citizen, when it correctly only applied to aliens. Surely even you wouldn’t disagree that the Chinese Exclusion Act was racist, would you?

    What constitutional right was violated when the Executive denied Wong entry back into the country of which he was a citizen? I would think a host of rights, but to choose one, I pick the right of assembly. Certainly when the Constitution guarantees Americans the right to assemble, it implies the right to assemble IN ANY OF THE UNITED STATES. By excluding Wong from the country, he was prevented any conceivable kind of assembly IN THE UNITED STATES.

    Mario Apuzzo: Let us just throw away our immigration laws, too.

    Immigration laws do not apply to citizens, no matter how much you might want it otherwise.

  96. avatar
    Dr. Conspiracy September 21, 2009 at 12:08 am #

    Me thinks Mario wants to overturn Dred Scott, as well as Wong and Brown.

  97. avatar
    Mario Apuzzo September 21, 2009 at 1:52 am #

    Does it upset you that I said Justice Gray? After all he did write the opinion.

    You insist on equating citizenship rights with race relations. The two have no connection.

    Kim Wong Ark was not a case involving the question of who is eligible to be President under Article II. That question does not turn on English common law which applied in the colonies and in the states after the adoption of the Constitution for resolving disputes between parties involving inheritance, torts, contracts, and property (the same areas of protection specified in the Civil Rights Act of 1866). The Founders did not rely on English common law in forming the new nation which necessarily included who would be its future national citizens and natural born citizens. Rather, they relied on the law of nations. It is noteworthy that the First Congress declared children of citizens of the United States born abroad “natural born Citizens.” This is the only time Congress ever declared any child a “natural born citizen.” The First Congress existed just after the Founding period and contained founding members themselves. In 1795, Congress declared these foreign-born children only “citizens.” Hence, we know that the correct formula for what is a “natural born Citizen” is the Vattel formula of being born in the country to parents who are citizens. This is the same formula that our U.S. Supreme Court adopted in The Venus, Shanks v. Dupont, Minor v. Happersett, Ex Parte Reynolds, Dred Scott v. Sandford, and U.S. v. Wong Kim Ark, when speaking about a “natural born Citizen.”

    Hence, Wong Kim Ark, recognizing that there are “citizens” and then there are “native- born citizens,” only declared Wong a “citizen” under the 14th amendment, thereby making him a member of the United States and giving him all the rights of the natural-born child of citizens. Of course, giving a “citizen” all the rights of a “natural born Citizen” cannot and does not include the constitutional privilege of being eligible to be President.

  98. avatar
    Lupin September 21, 2009 at 2:02 am #

    “Hence, we know that the correct formula for what is a “natural born Citizen” is the Vattel formula of being born in the country to parents who are citizens.”

    ONE parent is enough.

    Since Obama’s mother was/is a US citizen, he is a natural-born citizen, hence eligible.

    You lose.

  99. avatar
    dunstvangeet September 21, 2009 at 2:02 am #

    That’s just funny. If he had been declared a Natural Born Citizen, you’d be declaring it dicta, because it was not neccessary to the outcome of the case.

    Please show me just one case where the Supreme Court, or even any lower court, has ruled that there are people who are born within the soil of the United States, but are not Natural Born Citizens. Please just show me one case where the opinion of the court has shown that (do not quote from a dissenting opinion, or a concurring opinion).

  100. avatar
    Lupin September 21, 2009 at 2:20 am #

    Apuzzo’s case — whatever there is of it — is in a shambles since he made the gross mistake of mistreading Vattel (perhaps purposefully so?) and relying on the notion that, in order to be a Natural-Born Citizen, one had to be born from TWO parents who were US citizens.

    Unfortunately, that is NOT what Vattel says. Vattel says that it is enough for the FATHER ro be a US citizen for the child to be a “Naturel”.

    (A term which Apuzzo equates with “Natural-Born Citizen” which is not altogether correct, but let’s not split hairs.)

    That was later footnoted in the secobd edition to add the case of a child born to a MOTHER who is a US citizen.

    So, it is clear to anyone, at least anyone intellectual honest, that if one wishes to use Vattel to prove that Obama was not a NBC and therefore ineligible, one is completely wrong, as in fact he IS a NBC.

    Having made a pig’s breakfast out of (what seems to me to be) the lynchpin of his case, Apuzzi is flailing, making all kind of statements which appear to be mostly wishful thinking.

  101. avatar
    myson September 21, 2009 at 2:54 am #

    Mario, Mario Mario, Wong says a man or woman born in the USA is a citizen of same JUST as the USA constitution, what is wrong with that ?
    “Congress, the Executive, and the People” entered into a treaty in violation of the US constitution so the Supreme court of the land corrected that, how can that be wrong /
    Remember your side arues that to make obama a NBC the constitution will need to be changed so why arent u arguing that such a similar change should have been entered into the USC to exclude Chinese etc just as it was done to exclude Indian who dont pay tax ? You want a constitutional amenment to include someone but not a constitutional amendment to exclude another. That is intellectual dishonesty !!!
    “Also, the plaintiff in Wong was the United States of America should that little fact have slipped by you” I dont understand your point here ? But just in case you werent aware Obama was born just like Wong in the USA & is physically resident in the USA

  102. avatar
    kimba September 21, 2009 at 7:53 am #

    Wong was found to be a native born citizen, and he therefore did not fall under the Chinese Exclusion Act. The decision didn’t create a separate class of citizens. Under the 14th amendment there are native citizens and naturalized citizens. Wong was found to be a native citizen, which is a natural born citizen, who is eligible to be President. And what was the Chinese Exclusion Act other than a racist law? Exclusion. They even put it in the law’s name. Just like the Dred Scott decision was racist. This country has a long history of trying to exclude certain kinds of people from full citizenship rights. In the 1840s it was my Irish ancestors, in the 1850s it was blacks, 1890’s it was the Chinese, today it’s Muslims and Hispanics. You are doing the same with your effort to establish a special class of citizens who are native born, yet not eligible to be President. It is racist at its core. And no, Mario, you don’t upset me. I think you’re silly. You’ve got Kenyan granny misquotes, a Pakistani travel ban that never existed and a himalayan mountain of other birther foolishness in your complaint. You’ll be lucky to avoid a beat down like Orly got from Judge Land.

  103. avatar
    Greg September 21, 2009 at 7:53 am #

    That’s some tendentious reasoning there, Mario. And, I note, entirely without citation.

    First, the Founders did not rely on the so-called “Law of Nations” in defining citizenship or natural-born citizenship, because, as has been made clear, there WAS none. Vattel says one thing, but Pufendorf, Grotius, Burlamaqui all say something different. Vattel says one thing, but there was no uniformity in how nations practiced citizenship. See Story on Conflict of Laws, Lynch v. Clarke and Wong Kim Ark on this complete lack of a “Law of Nations!”

    I keep pointing out this fundamental flaw in your reasoning, and you keep ignoring it!

    Second: The fact that Congress declared children born abroad to citizens to be “natural born citizens” does not imply that they necessarily thought that birth here to two citizen parents was the rule. First, it is unlikely because that was not the rule ANYWHERE. Second, it could mean that the founders adopted the British Rule, which, in fact, is what all subsequent cases found – that the Founders had adopted the British rule, specifically natural born = born here, regardless of parental citizenship and jus sanguinis by statute.

    Third: You assume a certain amount of stupidity on the part of Gray, and on the part of the dissent in Wong Kim Ark. Everyone involved in the case, the United States Government, George D. Collins as Amicus, Wong and his amicus, and the dissent, thought that if the court decided for Wong, he’d be made eligible for the Presidency. Instead of disabusing them of this conclusion, Gray cites US v. Rhodes, which says that children born here are natural born citizens, regardless of their parents’ citizenship! Not once does he attempt to distinguish the condition of children born of aliens from that of children born of citizens. Instead of distinguishing Lynch v. Clarke, which explicitly said, in dicta, that a child born of an alien could run for President, he calls it “elaborately argued” and “decided upon full consideration.”

    Fourth: You ignore the parts of Wong that are fatal to your case. Wong rejects the notion that the “Law of Nations” said anything about our citizenship. Wong finds there to be NO “Law of Nations” on the subject! It rejects any distinction between the phrase “natural born” when used with citizen and when used with subject. Wong also does not distinguish between a citizen born here of alien parents and a citizen born here of citizen parents. There is nothing in the case to suggest that the former would not be able to run for president.

  104. avatar
    Greg September 21, 2009 at 8:35 am #

    Then you do admit that the Court did what I said it did.

    Assuming arguendo, that the Congress, the President and the People wanted to exclude the Chinese from birthright citizenship, then yes. That proposition, however, is dubious, since the writers of the 14th Amendment and the 1866 Civil Rights Act discussed how these laws would give the children of Chinese birthright citizenship. Senator Cowan voted against the 14th Amendment because it would give them citizenship. The President vetoed the Civil Rights Act, in part, because of this impact on citizenship for the children of Chinese immigrants.

    Can you cite for me what constitutional right Congress, the Executive, and the People violated in arguing that Wong was not a citizen of the United States?

    Birthright citizenship. Congress has no ability to apply immigration laws to citizens.

  105. avatar
    richCares September 21, 2009 at 12:23 pm #

    an interesting perspective by Apuzzo, reading this will help you understand why Apuzzo will fail!
    How to Try An Eligibility Case Against President Barack Obama
    Posted on September 21st, 2009 by David-Crockett,

    link:
    http://www.oilforimmigration.org/facts/?p=3456

  106. avatar
    Dr. Conspiracy September 21, 2009 at 2:03 pm #

    Thanks, that was interesting. And it does cover, although not highlight, why Apuzzo will fail. First he says “depending on who has the burden of proof.” In his mind perhaps there is a dispute there, but I think not. Apuzzo has the burden of proof. Second he has to convince the court that the court has jurisdiction, Kerchner has standing to bring the suit, and that the court had the power to do something to help Mr. Kerchner should he win. Apuzzo fails on all of these points.

    While Apuzzo blows a little smoke around the COLB, obviously the subpoena would be for the physical COLB not an image. Ron Polland is not a document expert, and could never appear in court as such. With the State Department of Health director in Hawaii saying Obama was born in Hawaii, I cannot conceive of any scenario where the COLB would not be accepted.

    While it would be pleasing to me to see all 200 and something allegations in Kerchner v. Obama tried and branded false, no court is ever going to touch it.

  107. avatar
    Mario Apuzzo September 21, 2009 at 4:18 pm #

    The Vattel formula is the same formula that our U.S. Supreme Court adopted in The Venus, Shanks v. Dupont, Minor v. Happersett, Ex Parte Reynolds, Dred Scott v. Sandford, and U.S. v. Wong Kim Ark, when speaking about a “natural born Citizen.”

    Happy reading.

  108. avatar
    Mario Apuzzo September 21, 2009 at 4:20 pm #

    I say that I ignore information. Well, tell me why you have not addressed my point that the Vattel formula is the same formula that our U.S. Supreme Court adopted in The Venus, Shanks v. Dupont, Minor v. Happersett, Ex Parte Reynolds, Dred Scott v. Sandford, and U.S. v. Wong Kim Ark, when speaking about a “natural born Citizen.”

  109. avatar
    Bob September 21, 2009 at 4:51 pm #

    The Vattel formula is the same formula that our U.S. Supreme Court adopted in … U.S. v. Wong Kim Ark, when speaking about a “natural born Citizen.”

    Where in the majority opinion in Wong Kim Ark is that?

    (And, seriously, Dred Scott? A concurring opinion in The Venus?)

  110. avatar
    Dr. Conspiracy September 21, 2009 at 5:02 pm #

    The Vattel formula was used in Minor v. Happersett in a speculative statement about CITIZEN, not NATURAL BORN CITIZEN. The very fact that it is used this way just goes to show that the Court was not making any distinction between Natural Born Citizen and Born a Citizen. The Wong decision settled the unresolved question in Minor as to who was born a citizen.

  111. avatar
    dunstvangeet September 21, 2009 at 5:03 pm #

    Actually, it’s not. Dred Scott v. Sanford, they said that the issue of citizenship was left upto the states under the 9th Amendment. A concurring opinion (Daniel) quoted de Vattel, but a concurring opinion is not case law, as I’ve explained before. All a concurring opinion says is, “I agree with the outcome of the case, but I have completely different reasoning.”

    Now, Minor actually didn’t resolve anything on the fact. Minor said that the court would not resolve the issue, since Minor fit under both definitions. Guess what, the court later went in on a case called U.S. v. Wong Kim Ark and said that it wasn’t de Vattel, but English Common Law where the definition was found.

    I’ll let others debunk the other claims.

  112. avatar
    Greg September 21, 2009 at 5:04 pm #

    I didn’t ignore it. The Court in Wong comprehensively and completely rejected Vattel. If he was used in the earlier cases, and I doubt you’ve read them any better than Wong, Vattel is dead letter after Wong.

    His discussion of the Vattelian conception begins on page 666 of the decision. “It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law, as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations.”

    Before I continue, I’ll stop and confirm. This is what you’re arguing, right? That the true rule of international law, that the citizenship of the child follows that of the parents, superseded common law which was originally founded on feudal considerations?

    Gray continues, in the decision, to reject that.

    First, “at the tiem of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France that, as said by Pothier, “citizens, true and native-born citizens, are those who are born within the extent of the dominion of France,” and mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil….”

    That principle continued in France until 1807, and wasn’t even fully ousted by the Code Napolean. A commenter wrote that the framers of that code “appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe… according to which nationality had always been, in former times, determined by placee of birth.” (Wong, 667)

    So, if the “Law of Nations” was influencing the founders, they did not find any international examples of Vattel’s conception.

    (As an aside, the language of Pothier is: “Les citoyens, les vrais et naturels Français….” I think that is as likely translated as “natural-born” as is “indigenes,” don’t you?)

    Gray continues that while there was almost NO support for Vattel’s conception at the founding, there was still not universal adoption of jus sanguinis by the passage of the 14th Amendment, since Holland, Denmark and Portugal all operated jus soli and France, Belgium, Spain, Italy, Greece and Russia allowed children of aliens to claim citizenship upon meeting some conditions. (667)

    I’d point out, here, that if there is no international consensus on the weak Vattelian conception – one parent, there certainly cannot be consensus on the super-Vattel – 2 parents on native soil!

    Wong concludes about the state of the “Law of Nations,” that “There is…little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there was any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion.”

    Then, equally fatal to your argument, Wong spends the next 7 pages explaining how, far from being commonly understood as part of the meaning of “natural born” the concept of jus sanguinis is entirely a statutory amendment of the term. Absent some statutory addition, natural born means ONLY born on the soil! “The acquisition of nationality by descent, is foreign to the principles of the common law, and is based wholly upon statutory enactments.” (Wong at 670, citing Dicey Conflict of Laws, 178, 741)

    Having comprehensively rejected Vattel and the “Law of Nations” for the bestowal of citizenship by parentage, Wong does nothing to ressurect it for any lesser purpose, such as distinguishing between so-called “native-born” and “natural-born” citizens.

    Can you explain how that could make sense? If Vattel is killed off in pages 666-675 of Wong, how is he useful for your purpose? He’s dead!

  113. avatar
    dunstvangeet September 21, 2009 at 5:04 pm #

    It’s not even Dred Scott. It’s a concurring opinion (written by Daniel) in Dred Scott…

  114. avatar
    dunstvangeet September 21, 2009 at 5:05 pm #

    Oh, and by the way, none of those cases said, “This person is a citizen by birth, but not a Natural Born Citizen.”

  115. avatar
    Greg September 21, 2009 at 5:18 pm #

    The Venus wasn’t a case about citizenship by birth, but about domicil and whether a naturalized citizen could be considered the subject of a foreign nation at war with the US if he creates a domicil there, or whether he loses his naturalization if he domiciles in his original country. The decision doesn’t address whether someone aquires citizenship by birth, and if so, what character that citizenship is. The majority and dissent quote Vattel, but only his definition of domicil plays a part in the decision.

  116. avatar
    Greg September 21, 2009 at 5:25 pm #

    Shanks v. DuPont is dealt with in Wong, giving further evidence that you didn’t read the decision with any care. You are again borrowing from the losing side in Wong, while ignoring how the court decided the issue (p. 660):

    It was of such a case that Mr. Justice Story, delivering the opinion of the court, said:

    The incapacities of femes covert, provided by the common law, apply to their civil rights, and are for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations.

    3 Pet. 248. This last sentence was relied on by the counsel for the United States as showing that the question whether a person is a citizen of a particular country is to be determined not by the law of that country, but by the principles of international law. But Mr. Justice Story certainly did not mean to suggest that, independently of treaty, there was any principle of international law which could defeat the operation of the established rule of citizenship by birth within the United States; for he referred (p. 245) to the contemporaneous opinions in Inglis v. Sailors’ Snug Harbor, [p661] above cited, in which this rule had been distinctly recognized, and in which he had said (p. 162) that “each government had a right to decide for itself who should be admitted or deemed citizens,” and, in his Treatise on the Conflict of Laws, published in 1834, he said that, in respect to residence in different countries or sovereignties, “there are certain principles which have been generally recognized by tribunals administering public law” [adding, in later editions “or the law of nations”] “as of unquestionable authority,” and stated, as the first of those principles, “Persons who are born in a country are generally deemed citizens and subjects of that country.” Story, Conflict of Laws, § 48.

    ~~~~

    Shanks, then, stands only for the ability of TREATY to change the citizenship of those affected by it. That’s a good time to look at the Law of Nations – when you’re dealing with treaties!

  117. avatar
    Greg September 21, 2009 at 6:03 pm #

    And, Ex Parte Reynolds isn’t a Supreme Court case, you cite it as an Arkansas case. And, it’s about Indians, which Wong states are outside the scope of its decision, occupying a state like the children of ambassadors.

    Plus, the actual decision in Ex Parte Reynolds makes much of the fact that Indians, like ambassadors, are entirely outside the scope of American jurisdiction. Thus, it appears to fall on our side of the argument – Indians cannot be tried even for murder if both perpetrator and victim are Indians, so they are entirely outside the scope of American jurisdiction.

    In order to give this court jurisdiction of the crime of murder, of which the defendant stands charged, it must appear that the crime was committed in the Indian country, and that the person who committed it is not one of those persons knwon as an Indian, or if he is an Indian, that the person on whom the crime was committed was not an Indian. If the person charged and the person upon whom the crime was committed are both Indians under section 2446 of the intercourse law, revised Statutes of 1873, page 376, this court has no jurisdiction, because by the terms of said section the general laws of the United States defining crimes and providing for their punishment do not extend to “offenses committed by one Indian upon the person or property of another Indian;” but the same are left by the laws of the United States to be dealt with by the Indian authorities.

    The court is faced with the question of whether the wife of Puryear (the victim) was an Indian citizen or an American citizen. If she was Indian, then Puryear would be Indian by marriage. Her mother had some Indian blood and her father had some indian blood, but her paternal grandfather was a full-blooded white man.

    The court had to decide whether she was an Indian or not because, “[Indians] are not citizens, although born in the United States….” The reason for this is because Indians are foreign nations within our borders. With this special case, the court applied Vattel’s rule that citizenship should follow the father.

    Obama’s dad, by contrast, was not part of a nation within our nation. He was fully subject to our laws. If he killed someone, he could be tried in our courts without the court first determining if the victim was a US citizen or not. Wong refers to this distinction in deciding that Wong is a citizen.

    In re Reynolds no more applies to Obama than it did to Wong.

  118. avatar
    SFJeff September 21, 2009 at 7:00 pm #

    Mario,

    I think I missed your response to my question:

    In the United States, who is responsible for providing proof- the plaintiff or the defendent?

  119. avatar
    Dr. Conspiracy September 21, 2009 at 8:22 pm #

    Greg: [Apuzzo is] again borrowing from the losing side in Wong

    Given that the case will never be heard in court, it doesn’t matter. The losing side in Wong sounds good, and it’s good enough to fool a layman. That’s all Kerchner is trying to do–get the patina of a federal lawsuit to make his claims sound more serious. The average birther doesn’t have a clue who Dred Scott was.

    The “travel ban to Pakistan” in Kerchner v Obama is not only a “dissenting” view, it is a totally false claim. Did that slow down Mr. Apuzzo from including it in the Kerchner complaint and signing his name to it? It doesn’t matter whether the argument is valid or not, just whether it fools anybody.

  120. avatar
    Greg September 21, 2009 at 11:13 pm #

    I was doing a little research on Rule 11 sanctions. Apparently, we lawyers are supposed to do some good faith investigation of the factual claims we make in our filings. How many times has Mario amended his complaint, while leaving in the obviously false travel ban?

    I also notice that he will lob a question in here and then run away, without responding to comprehensive rebuttals to his points.

    Oh, and on his site, you are the clear Jedi master, and I am a mere padawan.

  121. avatar
    Mario Apuzzo September 22, 2009 at 12:55 am #

    Greg,

    You really are something now that I am getting to learn more about you. Why do you not give the readers Justice Marshall’s statement of Vattel’s formula of what a “natural born citizen” is.

  122. avatar
    Mario Apuzzo September 22, 2009 at 12:59 am #

    Dr. C.

    You have really clung to that travel ban. Are you following some playbook?

  123. avatar
    Mario Apuzzo September 22, 2009 at 1:01 am #

    The reason I run away is that I cannot stomach being here too long.

  124. avatar
    NBC September 22, 2009 at 1:06 am #

    Yes Mario, Greg is quite something and he is showing how your arguments are quite hollow.

  125. avatar
    NBC September 22, 2009 at 1:07 am #

    ROTFL, you are funny in your ironic comments. As Dr C has explained, he has no client to please and can thus more freely follow where the evidence leads.

  126. avatar
    NBC September 22, 2009 at 1:08 am #

    Defeat is never enjoyable.

  127. avatar
    NBC September 22, 2009 at 1:10 am #

    Well, when the facts don’t help your argument you can always look to the dissenting side. Of course, as a lawyer, Apuzzo should be aware of the relevance of such dissenting opinions. Especially when the opinion itself so strongly contradict the dissent.

    Law 101

    Dr. Conspiracy: Greg: [Apuzzo is] again borrowing from the losing side in Wong

  128. avatar
    myson September 22, 2009 at 3:14 am #

    Maybe if u Mario admit to being wrong (No one has been able to substantiate the false travel ban) no one else will cling to falsehood ?

  129. avatar
    myson September 22, 2009 at 3:17 am #

    we understand your dilema here.
    falsehood cannot stay where truth is established.
    That y when light comes into a place darkness has to flee (U know the bible says so)
    You just must run away !!!!

  130. avatar
    kimba September 22, 2009 at 8:14 am #

    He always seems to come back. Maybe he’ll amend his complaint again, take our advice and take out all the birther mythology foolishness and leave only his super-citizen, two-fer, anointed-ones theory. At least when his case gets dismissed, he wouldn’t face as embarrassing of a beat-down like Orly took from Judge Land.

  131. avatar
    Dr. Conspiracy September 22, 2009 at 8:34 am #

    I think there is something about requiring leave from the court to amend the complaint multiple times. We’re already working on the 2nd amended complaint as it is.

  132. avatar
    Dr. Conspiracy September 22, 2009 at 8:55 am #

    Mr. Apuzzo,

    Yes, I do keep coming back to the travel ban to Pakistan. While most all of the Second Amended Complaint in Kerchner v. Obama is as much bunk as the one bit about the bogus travel ban to Pakistan, the travel ban is the one that is the easiest to prove false, and the one that never had the slightest reason to believe in the first place. It is the poster child for the irresponsible nature of the Kerchner complaint.

    I want to emphasize that word, “irresponsible.” Federal court rules prohibit attorneys from making irresponsible claims. They have to have at least SOME basis for them being made, and the travel ban to Pakistan is in the same league with Nigerian petroleum email scams. Just as Phil Berg referenced the Canadian birth certificate for Obama (signed by Dudley Do Right) in his original complaint, pointing out the lack of critical thinking that went into the claims made, so you and Kerchner have your travel ban to Pakistan. The presence of this item in the lawsuit proves that there are claims in the suit for which you have no justification.

    http://dosfan.lib.uic.edu/ERC/travel/cis/southasia/Pakistan.htm#Travel%20Warning click on the 1981 link.

    The irresponsible and false claims made in the Kerchner complaint call into question the integrity of everything associated with that action. If we can’t trust your integrity in the complaint you signed, why should anyone trust your integrity in your selection, citation, and interpretation of material about defining “natural born citizen”? Unfortunately for you, the second amended complaint is filed with the court and you cannot erase it. It stands as a monument to the crank nature of the movement to unseat Obama through smear and rumor under the guise of a lawsuit.

    Lest anyone think the travel ban is unique among the falsehoods and misrepresentation in the Kerchner complaint, I would refer them to the two articles I wrote about the case last January.

    http://www.obamaconspiracy.org/2009/01/kerchner-v-obama-and-the-whole-country/
    http://www.obamaconspiracy.org/2009/02/kerchner-v-obama-and-the-whole-country-part-2/

  133. avatar
    Bob September 22, 2009 at 10:48 am #

    I think there is something about requiring leave from the court to amend the complaint multiple times.

    You need the court’s permission to amend the complaint more than once.

    Apuzzo’s already gone over the limit, but the government filed a combination motion to dismiss (for the usual reasons) and strike (for being an unauthorized filing). The court will likely grant the motion to dismiss and deny the motion to strike as moot.

  134. avatar
    Dr. Conspiracy September 22, 2009 at 10:59 am #

    I’m still trying to figure out when the court is going to rule it. I really enjoyed reading the government’s motion and I have adapted a phrase from it for my blog’s new tag line: Looking for the gold coin in a bucket of mud.

    In that respect, the Federal Rules of Civil Procedure discourage the pleading of evidence. Drysdale v. Woerth, No. 98-3090, 1998 WL 966020, *2 (E.D. Pa. Nov. 18, 1998) (dismissing prolix complaint that described in unnecessary and burdensome detail every instance of defendant’s alleged misconduct); Burks v. City of Philadelphia, 904 F. Supp. 421, 424 (E.D. Pa. 1995) (dismissing complaint without prejudice because of its unnecessary, burdensome, and improper argumentative detail). “Rule 8(a) requires parties to make their pleadings straightforward, so that judges and adverse parties need not try to fish a gold coin from a bucket of mud.”

  135. avatar
    Heavy September 22, 2009 at 11:22 am #

    Mario,

    Youe pissing in the wind here. These folks are a lost cause. Just look at who does most of the posting here. It’s a liberal sausage party.

    Keep fighting the good fight, sir. Don’t waste your time with the close minded sickos that gather here to worship their savior.

  136. avatar
    richCares September 22, 2009 at 11:22 am #

    for Apuzzo, the proof will be in the pudding, will it be chocolate or vanilla.

  137. avatar
    Heavy September 22, 2009 at 11:26 am #

    This site has become a mockery. It is where libs come to worship a false prophet. Kind of like a mosque!

  138. avatar
    Bob September 22, 2009 at 11:32 am #

    I’m still trying to figure out when the court is going to rule it.

    The circuit court won’t even care until 2-3 months have passed, so this district court is still within that window.

    I don’t have access to PACER; how long did the court take to dismiss Berg?

    But speaking of pointless litigation, Donofrio announces there’ll be a new suit in Hawaii.

    The details haven’t been published yet, but it looks to be a (state equivalent) FOIA request about how Fukino determined Obama was a natural born citizen. Hawaii responded by saying there were privacy issues. (Donofrio also reads between the lines of Hawaii’s correspondence and thinks Obama has an amended birth certificate, despite the language in HRS 338 saying that the COLB would reflect that.)

  139. avatar
    nbc September 22, 2009 at 12:06 pm #

    You’re funny Heavy. It has been a tough week hasn’t it 🙂

  140. avatar
    SFJeff September 22, 2009 at 12:12 pm #

    Heavy is always amusing. Posts like his make me more inclined to call myself a liberal.

  141. avatar
    Mario Apuzzo September 22, 2009 at 1:44 pm #

    I guess you guys and gals are all working from the same playbook. Do you guys and gals get together over coffee? Do you really think that I am going to lose the case and get sanctioned by the Court because I said there was a travel “ban” for Americans wanting to travel to Pakistan in 1981? Let us take a look at the facts and consider some questions that are raised by Obama’s travel to Pakistan.

    Obama traveled to Pakistan in 1981 after visiting his mother and half-sister in Indonesia. In his April 6, 2008 speech in San Francisco, Obama said: “I traveled to Pakistan when I was in college — I knew what Sunni and Shia was [sic] before I joined the Senate Foreign Relations Committee.” I guess we can surmise from his having such in depth knowledge about the difference between Sunni and Shia (an understanding that according to him not even Hillary Clinton or McCain had) that he spent a lot of his time while in Pakistan studying the subject.

    In 1981, Pakistan was on the State Department list for “travel advisory.” \\Secretary\legalfiles\Political\Obama\Pakistan\Travel Advisory Sheets Archive.mht; http://dosfan.lib.uic.edu/ERC/travel/cis/southasia/TA_Pakistan1981.pdf. “The advisory is vital to ensure travelers are well-prepared,” insist the State Department travel advisory. ” “We provide advice to citizens so they will be well-prepared,” added the State Department advisory. http://www.eturbonews.com/7010/us-state-department-travel-advisory-london-dangerous-place-travel. “Travel warnings, which the State Department has been making public to American travelers since 1978 and which cover everything from civil unrest to health concerns, originate with the U.S. embassy or consulates of a specific country. Then the Bureau of Consular Affairs—and, occasionally, other agencies—weighs in, with the final decision coming from the office of the Undersecretary of State. The State Department subsequently revisits the warnings, usually every six months.” http://www.travelandleisure.com/articles/state-department-travel-warnings-explained/1. That the State Department did not technically put a “ban” on travel to Pakistan does not mean that it was not recommended for Americans to go there in 1981.

    When Obama traveled to Pakistan in 1981, the country was going through a civil war and was under martial law. It was experiencing serious social, political, and religious upheaval. A few years earlier, General Mohammad Zia-ul-Haq had overthrown the government of Bhutto by way of coup. Zia-ul-Haq even created a separate electoral system for non-Muslims. Courts were created to make sure the country’s laws were not repugnant to Islam. Millions of Afghan refugees were living in Pakistan and the Afghan Mujahedeen operated in Pakistan in their war with the Soviets. Government-issued visas to foreign visitors were good only for 30 days. The Government had in place Exit from Pakistan (Control) Ordinance, 1981, which allowed the Government to prevent any person who was in Pakistan from leaving the country even though they had valid travel documents without, in the name of “public interest,” even giving a reason for the action. Any person violating that ordinance faced 5 years of imprisonment. Because of these conditions, travel by an American using an U.S. passport was very risky to say the least. Also, there is currently a U.S. State Department travel warning for Americans wanting to travel to Pakistan. “The Department of State warns U.S. citizens against non-essential travel to Pakistan in light of the threat of terrorist activity. This replaces the Travel Warning dated February 25, 2009, updates information on security incidents and reminds U.S. citizens of ongoing security concerns in Pakistan.” http://travel.state.gov/travel/cis_pa_tw/tw/tw_930.html. Hence, while there might not have been a de jure “ban” on travel by Americans to Pakistan in 1981, there surely was a de facto one.

    Furthermore, if there was no problem traveling to Pakistan in 1981 as you suggest, tell me the following:

    1. How many Americans with U.S. passports went there in 1981.

    2. What function (job category) did these Americans have before entering the country.

    3. What was the purpose of their trip there.

    4. How long did they stay there.

    5. How many Americans were refused visas to enter the country.

    6. Why were they refused those visas.

    7. What passport did Obama use to travel into Pakistan.

    8. How did the young Obama finance his trip to Indonesia, India, and Pakistan.

    9. Why has Obama since mentioning his Pakistani trip just once never speak about it again even though there have been so many public inquiries about it.

    10. Why did the Obama campaign not respond to an invitation to comment on some of the speculation surrounding the visit to Pakistan or to provide further details about the trip.

    11. Was Obama one of the many included in the stream of Afro-Americans who–in the words of veteran security analyst, Bahukutumbi Raman, a former Indian counterterrorism chief–visited Pakistan to feel the greatness of the Afghani jihad against communism and their fascination for Abdullah Azzam.

    12. For how long did Obama stay in Pakistan.

    13. With whom did Obama visit while he was in Pakistan. If he visited politicians while there, how was he able to make such political connections.

    14. Why did Obama not mention his Pakistani trip and the in-depth religious knowledge that he gained from it in his autobiographies.

    So as you see, playing word games–“travel ban” vs. “travel advisory” really does not get you very far when we consider the realty that existed in Pakistan in 1981 and all the unanswered questions that Obama’s visit there raises.

  142. avatar
    Dr. Conspiracy September 22, 2009 at 1:55 pm #

    Apuzzo, you are pathetic, simply pathetic.

    Travel ban: You can’t go.

    Travel advisory: The visa is only good for 30 days.

    You are the one playing word games (a euphemism for “lying your ass off”).

  143. avatar
    Greg September 22, 2009 at 2:12 pm #

    Your second amended complaint, Par. 78:

    Obama also stated publicly that he traveled to Pakistan in the 1980s. But such travel was forbidden to American citizens at that time. There therefore exists a legitimate question as to what type of passport and declaration of citizenship Obama used to gain entry into Pakistan.

    Was there a de facto ban on travel to Pakistan in 1981? A better question is, do you think we’re stupid, Mario? That we don’t have access to the internet? That we cannot access New York Times archives and find travel pieces about visiting Pakistan published in June 1981?

    Was Obama one of the many included in the stream of Afro-Americans who–in the words of veteran security analyst, Bahukutumbi Raman, a former Indian counterterrorism chief–visited Pakistan to feel the greatness of the Afghani jihad against communism and their fascination for Abdullah Azzam.

    Would you guys pick a scare tactic and stick with it? Either he’s a communist, or he’s part of the CIA, or he’s part of the anti-communist jihad. He can’t be all three!

  144. avatar
    kimba September 22, 2009 at 2:19 pm #

    He wrote about Pakistan in his book. Now, he didn’t elaborate in great detail, because, didn’t you know? His next book will be “My Summer in Pakistan”. 😉 Really Mario. Try to distract all you want, it doesn’t change the fact your complaint contains a himalayan mountain of untrue accusations. By the way, there’s no religious test for elected office in this country. Just like we all knew Barack was black with a Kenyan father before the election, we knew he spent the ages of 6-10 in a muslim country. We vetted him. He won.

  145. avatar
    Bob September 22, 2009 at 2:30 pm #

    Your second amended complaint

    The second verified complaint. Three of the plaintiffs swore its contents were accurate.

  146. avatar
    Mario Apuzzo September 22, 2009 at 3:30 pm #

    Dr. Conspiracy,

    I guess I got you upset for taking away all your thunder.

  147. avatar
    Mario Apuzzo September 22, 2009 at 3:32 pm #

    Try and try again until you fail.

  148. avatar
    Bob September 22, 2009 at 3:35 pm #

    Try and try again until you fail.

    Oh, the irony.

  149. avatar
    nbc September 22, 2009 at 3:42 pm #

    By showing that your so called ban is nothing more than an advisory?

    Wonderful…

  150. avatar
    nbc September 22, 2009 at 3:46 pm #

    Well, at least it helps that Mario seems to be losing the arguments even before they get to court… Too bad that many of them were filed as well.
    Too bad that such filings cannot be undone, no matter how much spin is given to them.

    When can we expect the inevitable dismissal order, Mario? Any ideas?

  151. avatar
    SFJeff September 22, 2009 at 6:07 pm #

    To paraphrase SNL- Mario, you intellectually dishonest slut.

    The steaming pile of words you put up have little to nothing to do with Obama eligibility and mostly to do with your fears of his politics.

    As an example of your tortured logic:
    “Obama said: “I traveled to Pakistan when I was in college — I knew what Sunni and Shia was [sic] before I joined the Senate Foreign Relations Committee.” I guess we can surmise from his having such in depth knowledge about the difference between Sunni and Shia that he spent a lot of his time while in Pakistan studying the subject”

    Have you never travelled internationally as a student? First of all, he may have known the difference between Suni and Shia before he ever went to Pakistan, but even so, I can tell you that travelling in a country, talking with other students can be a very quick education. But you seem to pose that as a bad thing. Heaven forbid we have a President who actually has some comprehension as to the tensions in and around Pakistan- one of the most volatile areas in the world.

    To continue with your bizarro questions
    1-6 What do these have to do with President Obama’s eligibility?
    8-14 What do these have to do with President Obama’s eligibility? 7-14 especially are all political gotcha questions. They are irrelevant to the eligibility issue and remind me of Orly’s courtroom rantings.

    Only #7 has any possible linkage to eligibility- and it is not the defendent’s responsibility to prove he travelled to Pakistan on a U.S. Passport- it is the plaintiff’s responsibilty to provide….well some proof- any proof.

    Or Mario- do you still believe that in America, the Defendent must prove his innocence?

  152. avatar
    kimba September 22, 2009 at 6:16 pm #

    Mario is looking more and more like Orly in a tux.

  153. avatar
    kimba September 22, 2009 at 6:21 pm #

    The only thing I’m trying is to gig you. I would say I’m succeeding quite nicely.

  154. avatar
    Dr. Conspiracy September 22, 2009 at 7:09 pm #

    I happen to believe that it is immoral to attempt to mislead people. But what thunder do you think you took away? Readers here are not the idiots you presume.

  155. avatar
    SFJeff September 22, 2009 at 8:22 pm #

    “Mario is looking more and more like Orly in a tux.”

    That image hurts my brain

  156. avatar
    Benji Franklin September 22, 2009 at 9:53 pm #

    Dear Greg,

    Thank you for your expert knowledge. Mario is only pretending he doesn’t know you’ve point by point, made him look like a fool. A competent anti-Obama villain wouldn’t display the weak hand that crowd is stuck with here, and practice getting drilled. He’s too smart to think he’s winning. Perhaps he thinks he can prevail on some imagined point here, to salve his courtroom wounds. He evidences the glue that keeps all the squabbling Birthers orbiting hatefully around Obama, – loneliness.

    Regards,
    Benji Franklin

  157. avatar
    Greg September 22, 2009 at 10:38 pm #

    Okay, so the lower rating a comment gets, the dimmer it appears on the screen, and the dimmer the responses appear as well, right? Hmm. I can barely see this as I type it.

  158. avatar
    Mario Apuzzo September 22, 2009 at 10:54 pm #

    I should hire you to work for me:

    “Pakistan- one of the most volatile areas in the world.” So I guess you agree with me that Americans have no business traveling there.

    “They are irrelevant to the eligibility issue and remind me of Orly’s courtroom rantings.” That’s what I keep telling Dr. C. but he is just so much in love as are his intellectual partners here with the Pakistan travel ban.

  159. avatar
    Mario Apuzzo September 22, 2009 at 10:54 pm #

    Hey Dr. C.

    You better replace the batteries here or the lights are going to go out soon.

  160. avatar
    Mario Apuzzo September 22, 2009 at 10:58 pm #

    Hey, are you getting sexual now.

  161. avatar
    Mario Apuzzo September 22, 2009 at 11:00 pm #

    I think that tux makes me look like Vinny a little bit, don’t you?

  162. avatar
    Greg September 22, 2009 at 11:05 pm #

    Volatile NOW. Reading that NY Times travel article, it sounded like an interesting place to travel to, in 1981.

    That’s what I keep telling Dr. C. but he is just so much in love as are his intellectual partners here with the Pakistan travel ban.

    Hi. Did you know there’s a guy out there pretending to be Mario Apuzzo who filed a complaint in Federal court, and, get this, amended it, twice, and, you won’t believe this, but every one is a verified complaint, that mentions the Pakistani passport issue not less than 5 times (paras. 54, 78, 83, 99, 171)! Kerchner v. Obama or something like that.

    You should look into it. I mean, a guy like this, advancing an issue that is clearly irrelevant to Obama’s eligibility, clearly frivolous, clearly factually incorrect on even the most cursory investigation, that could do real damage to a lawyer’s reputation.

  163. avatar
    Gordon September 22, 2009 at 11:15 pm #

    Greg as I’ve stated before he’s throwing the whole salad against the wall.

  164. avatar
    Greg September 22, 2009 at 11:19 pm #

    Darn, forgot to put the sarcasm tag in there. This HTML stuff gets me sometimes.

  165. avatar
    nbc September 23, 2009 at 12:19 am #

    “Pakistan- one of the most volatile areas in the world.” So I guess you agree with me that Americans have no business traveling there.

    That’s a clever lawyer trick you’ve got there but it is called ‘leading the witness’ and calls for a conclusion not found in the facts.

  166. avatar
    nbc September 23, 2009 at 12:20 am #

    The issue of Pakistan is relevant as to the careless nature of some of the ‘complaints’ in that this appear to be at odds with the facts, which were known to many at that time.
    That you now attempt to trivialize them further undermines the credibility of your argument.

    No more questions for the witness

  167. avatar
    nbc September 23, 2009 at 12:21 am #

    Poor Mario, he does not take defeat very well. I wonder how he will respond then to the inevitable ruling of the Court.

  168. avatar
    nbc September 23, 2009 at 12:23 am #

    You should look into it. I mean, a guy like this, advancing an issue that is clearly irrelevant to Obama’s eligibility, clearly frivolous, clearly factually incorrect on even the most cursory investigation, that could do real damage to a lawyer’s reputation.

    Greg, I am amazed about how you can get so quickly to the point and debunk the nonsense either way.
    If it were not relevant then why was it added and if it were relevant why was it researched so sloppily?

    It’s the proverbial lose lose situation for our pal.
    You have effectively impeached Mario…

  169. avatar
    Mario Apuzzo September 23, 2009 at 2:02 am #

    nbc,

    You are another one who wore something out, our “poor Mario” and how the court is going to dismiss my case. I notice that when you have nothing intelligent to say you revert to your little childish retreats.

  170. avatar
    Mario Apuzzo September 23, 2009 at 2:10 am #

    Greg,

    Are you kidding me? I wrote that Kerchner complaint. I thought you knew that. I cannot imagine that all this time that I have been commenting here you did not know that.

    Also, on the travel ban, its all part of the res gestae.

  171. avatar
    Mario Apuzzo September 23, 2009 at 2:20 am #

    nbc,

    The word itself “travel ban” is not relevant on the eligibility issue. What is relevant is how Obama travelled to Pakistan and what he did there. The word “ban” is only used to describe that an alleged American would have to travel to a country that is not safe. As I explained, we can use “travel advisory” and accomplish the same. The questions still remains, however–how did he travel there? What passport did he use? What did he do there?

  172. avatar
    Greg September 23, 2009 at 2:24 am #

    Again, I forgot to put the sarcasm tags in there. HTML messes with me all the time. Or maybe someone forgot to close the literal-reading tag above.

    As for the “res gestae,” I guess I just have the rule 11 research I’ve been doing for a case rattling around in my head, about how the factual allegations one puts forward in one’s complaint have to be supported upon a reasonable investigation of the facts. Seems to me that quoting some fact that is so easily disprovable as the Pakistan travel ban (NY Times travelogue article from 1981?) calls into question what reasonable investigation was conducted of the facts and legal theories involved? Clearly, there are some (all) facts that were not reasonably investigated. I haven’t read all the paragraphs in your complaint, but I know that adoption in a foreign country cannot cause a minor to lose their citizenship.

  173. avatar
    Greg September 23, 2009 at 2:28 am #

    How did the NY Times author travel there? What passport did the author use? What else did the author do there?

    There’s currently a travel alert for Mexico. What passport did Bush use when he traveled there? There’s a travel alert for India.

  174. avatar
    Greg September 23, 2009 at 2:37 am #

    If the word travel ban doesn’t mean anything, then why did you plead it that way in your complaint. You specifically said that he traveled to Pakistan in 1981, at a time when Americans were “prohibited” from entering the country.

    The reason you cannot plead it as a “travel advisory” is because asking questions about how Obama paid for his trip doesn’t satisfy any sort of pleading standard in Federal court, Twombly or Iqbal. There’s no line, straight or otherwise, that can be drawn from buying a ticket with money you skimmed from your paper deliveries to ineligibility! Without the travel ban, the Pakistani travel requires layer upon layer of conjecture and speculation to get to ineligibility.

  175. avatar
    NBC September 23, 2009 at 4:51 am #

    Sigh… This is just a fishing expedition disguised as a lawsuit. If one cannot even be accurate about these details which are actually quite relevant, then it comes as no surprise that other arguments similarly suffer from accuracty.

    Mario Apuzzo: How did the NY Times author travel there? What passport did the author use? What else did the author do there?

  176. avatar
    Welsh Dragon September 23, 2009 at 4:56 am #

    Mario seems to be conceding that there was technically no travel ban to Pakistan. I wonder if he could tell us what else in the second amended complaint is incorrect?

    Note I don’t say ‘false’ with it’s implications of deceit, merely ‘incorrect’.

    For instance, does he still believe that: “Jay would have obtained the term “natural born Citizen” from the leading legal
    treatise of those times, The Law of Nations (1758), E. Vattel, Book 1, Chapter 19,
    Section 212.” or does he accept that the term did not appear in translations of Vattel until 1797?

  177. avatar
    NBC September 23, 2009 at 4:59 am #

    Excellent point. It prejudices the reader to a conclusion not warranted by the actual facts.
    Of course, we see the layer upon layer conjectures all around the ‘arguments’ that Obama somehow was not born in the US, was adopted, lost his citizenship and so in. Light in the facts, so the speak.

    Greg: Without the travel ban, the Pakistani travel requires layer upon layer of conjecture and speculation to get to ineligibility.

  178. avatar
    Welsh Dragon September 23, 2009 at 5:25 am #

    While reading Orly’s response to the MTD in Barnett V Obama I was struck by this quote:

    “In interpreting this text, we are guided by the principle that
    “[t]he Constitution was written to be understood by the voters; its
    words and phrases were used in their normal and ordinary as
    distinguished from technical meaning.” United States v. Sprague,
    282 U.S. 716, 731, 51 S.Ct. 220, 75 L.Ed. 640 (1931); see also
    Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1, 188, 6 L.Ed. 23 (1824).
    Normal meaning may of course include an idiomatic meaning, but it
    excludes secret or technical meanings that would not have been
    known to ordinary citizens in the founding generation.”

    It’s from the opinion of the court ,written by Justice Scalia in DC v Heller. I wonder how Mario would propose to convince Scalia that the two citizen parent definition was known to “ordinary citizens” at the time?

  179. avatar
    Greg September 23, 2009 at 6:37 am #

    A very interesting decision for our purposes in its use of historical sources for interpreting the Constitution. Vattel’s got a citation in a footnote. Justice Story’s Commentaries are mentioned 16 times, Blackstone’s mentioned 14 times, Rawle and Tucker each 11 times, Kent gets 2 cites.

    Of course, other than Vattel, each of those sources take the born here definition of natural born citizen.

  180. avatar
    Lupin September 23, 2009 at 7:14 am #

    “I happen to believe that it is immoral to attempt to mislead people.”

    And Judges notoriously frown on attorneys caught doing just that.

  181. avatar
    Lupin September 23, 2009 at 7:19 am #

    I heard Nixon went to China, too.

    Just sayin’.

  182. avatar
    Lupin September 23, 2009 at 7:22 am #

    And further the “twofer” interpretation is simply incorrect.

  183. avatar
    Dr. Conspiracy September 23, 2009 at 7:23 am #

    In my view, any statement crafted to deceive, whether true in some technical sense or not, is a lie. My moral judgments are based on intent, and my definition of lie is based on intent.

    Now Mario Apuzzo and others (say for example Bill Clinton) have legal training that help them mislead others (lie) without committing perjury. Clearly, if Apuzzo had said under oath the words he signed in the second amended complaint in Kercher v. Obama he would be committing perjury. The comment he left here is probably twisted enough to preclude him being convicted of perjury if that statement were made under oath, even though it has the same intent.

    The essential lie in Apuzzo’s comment here is that the Travel advisory to Pakistan in 1981 suggested that Americans should not go there, when in fact there is not a hint in the Advisory to suggest that Americans should not go there, or that there was any special risk in their going there. And of course the Kerchner argument was that Obama had a foreign passport because Americans were prohibited from going there–which is blatantly false.

    I’m assuming that Mr. Apuzzo had little or nothing to do with the drafting of the second amended complaint, but he still signed it.

  184. avatar
    Welsh Dragon September 23, 2009 at 7:36 am #

    Greg – I like those numbers!

    I hadn’t noticed the Vattel footnote when I made my original post although by coincidence I just saw it over in FR where a birther was citing it in a different context. Spooky!

  185. avatar
    Welsh Dragon September 23, 2009 at 7:37 am #

    D’accord!