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New NBC commentary appears at Harvard Law Review

Image result for harvard law reviewNeal Katyal, former acting solicitor general for President Obama and Paul D. Clement, former solicitor general for President George W. Bush, agree on one thing, Ted Cruz has what it takes to be president, at least Constitutionally speaking. What is a “natural born citizen” is the question they address in an article titled, “On the Meaning of ‘Natural Born Citizen’” published yesterday (11 March, 2015) at the Harvard Law Review Forum.


They call “spurious” recent arguments that someone born a US citizen abroad, like Cruz, is ineligible. In their view:

…the relevant materials clearly indicate that a “natural born Citizen” means a citizen from birth with no need to go through naturalization proceedings.

Their argument is based on the emphasis that the courts have given the English Common Low and those statutes enacted by the First Congress. They point to various English statutes from the 1700s that refer to the children of English subjects born overseas as “natural born” and to the phrasing of the US Naturalization Act of 1790 that states that those children born to US parents (under most conditions) are natural born citizens.

I might quibble with some of the emphasis in this short piece, but I wholeheartedly agree with this:

The less time spent dealing with specious objections to candidate eligibility, the better.

Lawrence Sellin, PhD, spreads disinformation about presidential eligibility

The Sonoran News, a right-wing news site in Arizona, has published a guest editorial by Lawrence Sellin, PhD (in physiology), in which he says that we should discount what the politicians and the journalists say about presidential eligibility, and listen to him instead. I might add that one would also have to ignore no less than 10 court decisions (plus appeals) over the past 7 years and a truck load of Civics books and legal commentary as well. Listening to him would be a big mistake, because Sellin is a crank when it comes to the topic.

Sellin is a Vattelist, saying:

The term "natural born citizen" was well-known during the time of the writing of the Constitution from Vattel’s "Law of Nations" (1758), which stated "natural-born citizens are those born in a country of citizen parents" (Volume 1, Chapter 19, Section 212).

Of course no Framer of the US Constitution ever said that the phrase was based on Vattel. In fact the edition of Vattel available to the Framers, didn’t even contain the words “natural born citizen” – that came a decade later. Vattel was never mentioned in the context of citizenship or eligibility for office in the debates of the constitutional convention, or the debates over ratification in the state legislatures. The Supreme Court says (US v. Wong) that the term comes from English Common Law. Sellin is just making stuff up.

Sellin then plays the second birther card, Minor v. Happersett, a voting rights case from the 19th century. He claims that this case defines “natural born citizen” when in fact it states unequivocally that it was only considering the status of persons born in the US to citizen parents, and not others. Judges (see Allen v. Obama) and law professors (e.g. Associate Professor Joseph Hylton of Marquette University Law School1) are both on record that the Minor decision does not define the term for all classes of persons.

So why does Sellin’s view get so little traction with the courts, the Congress, the news media, Law Professors and historians? Sellin offers a conspiracist explanation:

Why is there a controversy? Because, I repeat, politicians and journalists are driven by political expediency in order to protect and enhance their own financial interests.

You might attribute this motive to some politicians and journalists, but all of them? I think not. And what about the judges, historians and law professors? What about ones writing 100 years ago?

The conspiracy started, according to Sellin, with a disinformation campaign that started in February of 2008 with a “fake” controversy about John McCain started by Obama supporters. The controversy was hardly fake as it had arisen decades before when George Romney (born in Mexico) was considered a candidate for President. The Hollander v. McCain lawsuit was filed in March. 2008, but Fred Hollander stated that he was a McCain supporter just trying to settle the issue. Other McCain lawsuits (e.g. Robinson v. Bowen) were from third-party supporters who didn’t like McCain or Obama, and sued both. Sellin also repeats the false rumor that McCain was born in a Panamanian hospital, rather than his true place of birth on the Coco Solo Naval Base in the Canal Zone.

Sellin thinks that S. Res. 511, declaring John McCain eligible, was some sort of back-door deal where Democrats got a tacit waiver for Obama. Here Sellin breaks with birther tradition that says (falsely) that S. Res. 511 declares Obama ineligible (making the same mistake confusing sufficient with necessary conditions that they make with Minor). What Sellin doesn’t appreciate is that the question of McCain’s eligibility is not completely settled, while Obamas’ is. Cruz is in a weaker position than McCain because the Panama Canal Zone, while not an incorporated US Territory, was under some sort of US jurisdiction.

Sellin continues the disinformation campaign theme by saying:

Complicit with the Democrats in violating the Constitution, the Republicans joined them in a deliberate campaign of disinformation to hide the truth about Obama and the natural born requirement; an effort that continues to this day.

That disinformation campaign actually started at least as early as 1776. Historian George Bancroft writing in the 19th century about the period between the Articles of Confederation and the adoption of the US Constitution said:

Every one who first saw the light on American soil was a natural-born American citizen.

And it continued with the first major work of exposition of the Constitution by jurist, historian and confidant of Franklin and Washington, William Rawle, who wrote in his A View of the Constitution of the United States (2nd Ed. 1829):

…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.

Mr. Sellin is the disinformation campaigner. What are his motives? He claims that racism is behind his imaginary disinformation campaign for Obama; perhaps that’s what is behind the real disinformation campaign against Obama. Or maybe he’s just repeating something he heard in a chain email.

1Hylton wrote:

To cite Minor v. Happersett as the definitive statement of the meaning of the phrase “natural born citizen” is to exhibit an unfortunate lack of understanding of the Supreme Court’s 1874 decision in that case.

Foggy answers Apuzzo

A week later,  Bill Bryan aka Foggy appeared on the Charles Kuck Immigration program to respond to Mario Apuzzo. Thanks for the shout out to Obama Conspiracy Theories.

Here it is:

I’ve listened to the first segment and have these comments:

  1. John McCain was  born in 1936, not 1937.
  2. John McCain was  born on the Coco Solo Submarine Base, not in the Republic of Panama. The idea that McCain was born in hospital in Panama was a crude forgery. The newspaper announcements said on the base, and the reporter who actually saw McCain’s certificate said it was on the base. This is not controversial.
  3. The law in effect in 1936 did not make children born in the Canal Zone citizens. There was a “donut hole.” A later law was passed that retroactively made such persons citizens at birth. (The statute is cited in Robinson v. Bowen).

John McCain on Arizona investigation: “It’s crazy”

Senator John McCain, speaking to Piers Morgan in an interview on CNN July 19, 2012, spoke about Sheriff Joe Arpaio’s investigation of Barack Obama’s birth certificate. Here’s the exchange that occurs after a discussion of other spurious attacks against others:

MORGAN: What does it say about the state of modern politics, that that kind of thing can happen?

MCCAIN: Listen, we just had a sheriff of Maricopa County, again, who has taken it upon himself to prove that President Obama was not born in the United States of America. Need I say more?

MORGAN: Well, I think you need to say one thing more, which is what does it tell you about the state of politics?

MCCAIN: It’s crazy. It stokes the fires of extremism and passions of people that really is very unfair. So it’s up to us to try to steer things into a more rational behavior and thought. But this is still the greatest nation in the world. It’s still the best people in the world. It’s still the most innovative nation in the world.

The full transcript is available at Real Clear Politics. Senator Lindsey Graham similarly called birthers “crazy” in 2008.

Obama uses birthers to attack Romney

A new campaign video from the Obama Campaign contrasts John McCain and Mitt Romney. McCain, it says, had the courage to stand up to the extremists in his party; Romney does not.

Republican leaders have said that birtherism is a distraction that plays in Obama’s favor. Apparently the President agrees. Watch the video:

Birth certificate is a clumsy forgery

Take a look at the images below taken from a birth certificate, and in particular at the numbers “3,” “6” and “9.” Unless you already know where these came from, you can make your own decision, free from any confirmation bias, as to whether this looks fishy.



Could any reasonable person argue against two different typewriters and/or digital fonts being used? Believe it or not, the document from which these images came was offered in court as authentic. I call it a clumsy forgery.

The reason I bring this up is that birthers, perhaps millions of them, believe that this document is authentic. Birthers say, “John McCain released his birth certificate” and what you see above is that birth certificate, one of the exhibits Fred Hollander submitted in the Hollander v. McCain lawsuit. Birthers strain a gnat from blotchy, low-resolution images on Obama’s certified long form, vouched for by the State of Hawaii, yet they swallow a camel in this obviously faked document that came from a conman in Panama.