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7 Responses to Question for the Birthers…

  1. avatar
    Dr. Conspiracy December 31, 2011 at 10:06 am #

    As far as I know, the name of the video’s producer, kennyobotkenny, and the name of my Obot fictional character Kenny in The Obot Chronicles if purely coincidental.

  2. avatar
    JPotter December 31, 2011 at 10:17 am #

    Thanks, Doc! That video and the Reality Check Radio update re: Paul Irey made for an awesome start to a long weekend!

    With the wide array of prominent birthers, perhaps kennyobotkenny would pursue an album project …

  3. avatar
    Atticus Finch December 31, 2011 at 11:16 am #

    Excellent!

    Speaking of De Vattel and his modern day vattelites

    The problem with Vattelites in their argument that the term Natural Born Citizen is founded on Roman or Civil Law instead of English Common Law is that their argument demonstrate their ignorance that the Constitution provisions were framed in the language of the English Common Law and their argument ignore the historical development of Anglo-American jurisprudence that is rooted in the English Common Law.

    Courts have recognized that the drafters of the constitution of whom most were lawyers were influenced by the principles and history of the common law that we inherited from the English. “The principles and history of the common law were well known to the framers of the Constitution and the members of the First Congress; it was from that system that their terminology was derived; and the provisions of the Constitution and contemporaneous legislation must be interpreted accordingly.” Southern Pacific Co. v. Jensen, 244 US 205, 230 (1917) (Pitney, J. dissenting); See also Smith v. Alabama, 124 U. S. 465, 478 (1888) (“The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”)

    Likewise, Chief Justice, Holmes in Gompers v. United States, 233 US 604 (1914) noted that courts must considered to common law origin of the provisions of the Constitution when he observed: “[T]the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” Id at 610

    Moreover, Chief Justice Taft stated in Ex Parte Grossman, 267 U.S. 76, 108-09 (1925): “The language of the Constitution cannot be interpreted safely except by reference to the common law and British institutions as they were when the instrument was framed and adopted.”

    Since the drafters of the Constitution wrote it in the language of the English common law then according to statutory construction that unless otherwise defined in the Constitution, words are to be taken at their ordinary and contemporary meaning. “ A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 US 37,42 (1979).

    Moreover, if the use of words in the Constitution have a common law meaning
    then the courts must infer the incorporation of this common law meaning unless the language of the Constitution compels a different meaning.” [G]uided by the principle that where words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country they are presumed to have been used in that sense unless the context compels to the contrary.” Standard Oil Co. of NJ v. United Sates, 221 US 1, 59 (1911); Neder v. United States, 527 US 1, 21 (1999) (It is a well-established rule of construction that “`[w]here Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.’) (internal citations omitted)

    Furthermore, if words were created not by positive law but rather by judicially created concept then any interpretation of those words other than their common law meaning must be specific and clear. “The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific.” Stillians v. Iowa, 843 F.2d 276, 280 (8th Cir.1988) (quoting Midlantic Nat’l Bank v. New Jersey Dep’t of Envtl. Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986)). Thus, it is proper to consider that Congress acts with knowledge of existing law, and that “absent a clear manifestation of contrary intent, a newly-enacted or revised statute is presumed to be harmonious with existing law and its judicial construction.” Johnson v. First Nat’l Bank of Montevideo, 719 F.2d 270, 277 (8th Cir.1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984). Estate of Wood v. CIR, 909 F. 2d 1155,1160 (8th Cir. 1990)

    In other words, If drafters of the Constitution used words in the Constitution that have a common law meaning then it is PRESUMED that drafters intended common law application of the words UNLESS there is language in the Constitution that intended a contrary interpretation of the words.

    As such, the term natural born citizen is a derivation of the term natural born subject that was a judicially created concept as articulated by Blackstone in his Commentaries of the Laws of England (1765) then UNLESS the founding fathers intended a different meaning other than the common law rule meaning of natural born citizen it was the responsibility of drafters to incorporate this different meaning.

    The failure of the drafters to indicate a different meaning other than the common law meaning of natural born citizen in the Constitution demonstrated that the drafters intended to incorporate the established common law meaning of natural born citizen.

  4. avatar
    JD Reed December 31, 2011 at 12:23 pm #

    And just to drive home the popint, the conservative’s conservative on the Supreme Court, Mr. Justice Scalia, is an ardent proponent of the concept that statutes and constitutional provisions are to be onterpreted according to the common ordinarily understood meaning of the text. Meaning that if he adheres to this principle in deciding any birther lawuit based on Vattel, the outlook would be extremely dim for the birthers to prevail, assuming that the four liberal justices have no reason to side with them.
    Not that I expect the high court to actually entertain a birther lawsuit rather than simply dismiss as meritless on its face.

  5. avatar
    gorefan December 31, 2011 at 12:42 pm #

    Atticus Finch: The failure of the drafters to indicate a different meaning other than the common law meaning of natural born citizen in the Constitution demonstrated that the drafters intended to incorporate the established common law meaning of natural born citizen.

    As Alexander Hamilton wrote,

    “where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived.”

  6. avatar
    Dr. Conspiracy December 31, 2011 at 4:02 pm #

    I am not so confident that the Supreme Court will not decide a birther case in 2012.

    Certainly the Supreme Court will not hear a case as to the determination of where Obama was born. That’s a matter of fact and not law. However, it is entirely conceivable that they would hear a ballot challenge based on the definition of “natural born citizen.” There, the birther argument has a barely measurable amount of merit.

    Of course, should such a case be heard, I am confident that the decision will be 9-0.

    JD Reed: Not that I expect the high court to actually entertain a birther lawsuit rather than simply dismiss as meritless on its face.

  7. avatar
    G December 31, 2011 at 4:29 pm #

    Every bit of that was just…AWESOME! LMAO! Ah, now I’ve got that song stuck in my head… 😉

    Dr. Conspiracy:
    As far as I know, the name of the video’s producer, kennyobotkenny, and the name of my Obot fictional character Kenny in The Obot Chronicles if purely coincidental.