Questions for Mario Apuzzo (6)

Dred Scott

Dred Scott

Here’s a natural born thought experiment. Consider two hypothetical persons, both born on January 1, 1799 in Charleston, South Carolina.

Ezekiel Crowe was born a slave and the son of slaves. Both he and his Charleston-born parents were owned by John Rutledge, a Framer of the Constitution of the United States. Young Crowe was raised listening to anecdotes about the great Mr. Rutledge. Mr. Crowe was freed from slavery by the proclamation of Abraham Lincoln in 1863 when he was 64 years old.  He served in the reconstruction legislature in South Carolina, and received a law degree from the University of South Carolina.

Otto Shicklegruber was born the son of German immigrants who arrived from Germany in 1793 and had become naturalized US Citizens. Otto’s father died of yellow fever before Otto was born and his mother died in childbirth. Because both of his parents were dead, the newborn Shicklegruber  was sent back to Germany to live with grandparents. In 1857  he returned to the United States and established residence in a German speaking community in Wisconsin (Shicklegruber did not speak any English), where he lived as a loan shark.


  1. Which of the two were natural born citizens of the United States on April 15, 1856? (Before the Dred Scott decision)
  2. Which of the two were natural born citizens of the United States on April 15, 1862? (After Dred Scott, but before the Emancipation Proclamation))
  3. Which of the two were natural born citizens of the United States on April 15, 1865? (After the Emancipation Proclamation, but before the 14th Amendment
  4. Which of the two were natural born citizens of the United States on April 15, 1870? (After the 14th Amendment)
  5. Which of the two were eligible to run against President Grant in 1872? (after Shicklegruber had lived in the US for 14 years)

About Dr. Conspiracy

I'm not a real doctor, but I have a master's degree.
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43 Responses to Questions for Mario Apuzzo (6)

  1. misha says:

    You will not get a straight answer from Mario. He is the master of circular reasoning. I studied that in my paralegal classes, and thought “so that’s how they do it.”

    More trivia: Lawrence Welk was born in a German only speaking part of North Dakota, and he never got rid of that accent – didn’t hurt him, though. He was an accomplished accordionist, like me.

    Yet more trivia: there is speculation that Adolf Hitler’s birth name was Shicklegruber.

  2. misha says:

    One more note: I have repeatedly asked Mario what his DWI win/loss record is. No answer.

    They’re a lot tougher in NYS on DWI.

  3. misha: Yet more trivia: there is speculation that Adolf Hitler’s birth name was Shicklegruber.

    This is why I chose that name for my hypothetical German.

  4. Expelliarmus says:

    He won’t answer because 90%+ of DWI cases are resolved with a negotiated plea.

  5. misha says:

    “Otto von Shicklegruber”

    Shicklgruber is an Austrian provincial name. It would never be combined with ‘von,’ which is Prussian and Junker – nobility.

    That’s like someone named Christian Goldberg, or Mary Goldstein.

  6. misha says:

    OT: Palin’s “book” is written by Lynn Vincent, a creationist. Vincent is also BFF with Robert Stacy McCain, who wrote: “The media now force interracial images into the public mind and a number of perfectly rational people react to these images with an altogether natural revulsion. The white person who does not mind transacting business with a black bank clerk may yet be averse to accepting the clerk as his sister-in-law, and THIS IS NOT RACISM, no matter what Madison Avenue, Hollywood and Washington tell us.”

  7. I presume that if forced Apuzzo would reply “only Shicklegruber” to all 5 questions.

    He would rely on Dred Scott v. Sanford to say that although the 14th amendment made Crowe a citizen, he was not a citizen at birth and hence not a natural born citizen.

    I would say “both” to all 5 questions, holding that Dred Scott was wrongly decided and that 14th Amendment was merely declaratory. Crowe was a citizen at birth.

  8. Lupin says:

    That’s because THEIR definition of “racism” is something like “uppity n*gg*rs who think they’re better than their God-anointed white overlords”.

    We should compile a birther dictionary. Like “attorney” would be: “Savior of the white race entitled to lie, distort and fabricate evidence and abuse the legal system in order to protect the people from racism (q.v.)”

    It all makes sense now.

  9. Lupin says:

    OT, there is a novel by Norman Spinrad, THE IRON DREAM, in which Hitler emigrated to the US in the 1920s and became a famous sf writer and illustrator, outputting his “fantasies” in the form of pulp fiction.

    (“The Iron Dream” is, in fact, the novel that Hitler wrote, which, to our eyes, is a transparent allegory of his Nazi dream.)

  10. Welsh Dragon says:

    I’d also say that I don’t read the 14th as having any retrospective effect if it did that would have opened up the possibility of former slaves suing for prior denial of citizenship rights. That would have been a bag of worms that I doubt would’ve been ratified.

    Whether a former slave would have an nbc after the 14th is a question that I’m uncertain about.

    Schicklegruber is easy he’s nbc all theway down.

  11. My view is that the slaves were always citizens, just not recognized so due to the error of the court in Dred Scott. The 14th amendment was simply declaratory of that fact. If anything, the 14th amendment clearly established the concept of national citizenship, and required the states to recognize state citizenship solely upon the criterion of residence.

  12. Paul Pieniezny says:

    Good grief! Reminds me of “The Future of Yeterday” – “De toekomst van gisteren” by Harry Mulisch. Subject of the book is an attempt to envisage a world in which Nazi Germany won the war, and in which the book itself is written by a Dutch survivor who envisages a world in which Nazi Germany lost the war. NOT translated into English yet. One of the problems for a future translator may be that the novel actually predates a few similar novels in English, whereas Mulisch claims he got the idea from HG Wells “The Shape of Things to Come”.

  13. Bob says:

    Hitler’s middle name is Elizabeth.

  14. Bob says:

    Most criminal cases in a pleas; is that an automatic win for prosecutors and loss for the defense? If the defense can negotiate a favorable outcome on key issues (i.e., felony v. misdemeanor, jail v. no jail, prison v. jail, etc.), that is usually considered a defense win despite the plea.

    For example, if someone is charged with DWI but the case is eventually disposed of by speeding ticket, that’s a pretty big for the defense.

  15. BTW, I was on a DWI jury once. Interesting experience.

  16. Bob says:


    Oddly, DWI is not considered a very serious crime, but a DWI can be very difficult to litigate because there are so many possible defenses.

    Agencies like the DA and PD use DWI cases as a sort of trial-by-fire, knowing that if its attorneys can handle those cases, they can handle more serious ones, but if they can’t, the loss (from either side’s perspective) isn’t considered all that bad.

  17. Paul Pieniezny says:

    misha: there is speculation that Adolf Hitler’s birth name was Shicklegruber

    In reality, Adolf Hitler was indeed almost called Adolf Schicklgruber, but the story is a bit different. His father was renamed Hitler before Adolf’s birth as a result of an affidavit claiming paternity signed by three witnesses. Only, both mother and father (Adolf’s grandmother and presumed grandfather) were long dead by then. This has led to all sorts of speculation, even a claim that Adolf’s grandfather was really the Jewish employer of his grandmother. Here is a good link that does not try to embellish the story:

  18. misha says:

    I thought it was Schtup, or von Schtup.

  19. Jez says:

    More trivia: Lawrence Welk was born in a German only speaking part of North Dakota, and he never got rid of that accent – didn’t hurt him, though. He was an accomplished accordionist, like me.

    More trivia based on this. I grew up about an hour away from his childhood home. My Aunt, Uncle, a couple of Cousins, and Grandfather(on mother’s side) also spoke German and a smattering of Hungarian before starting school. But no English.

    There are still people in the area (mostly in small farming communities) where the main language spoken in the home is German, or some dialect thereof.

  20. Mario Apuzzo says:

    Dr. Conspiracy,


    Given that Article II focuses on the time of birth, the first question is what was Shicklegruber citizenship status at the time of birth. He is a “natural born Citizen” on all 5 points because he is reputed to be born in the United States to a mother and father who were United States citizens at the time of his birth. Even though neither one of his parents were alive when he was born, by the law of nature he inherited their condition which was United States citizenship. Hence, at the time of birth, he had Unity of Citizenship, jus soli and jus sanguinis combined in him at birth. He was not born subject to any foreign power. He was born with sole and absolute allegiance to the United States. He was therefore born a “natural born Citizen.”

    Next we have to consider if he lost that status. Due to circumstances out of his control, he lived in Germany from when he was born until he was 58. He did then returned to the U.S. Hence, he spent most of his life out of the U.S. Depending on what citizenship law applied to his situation, living in the country of his naturalized parents for such a long time under old citizenship law could have caused him to lose his U.S. citizenship. We would have to see if any such law was in effect during a relevant moment of his his life time. Under modern law, he would have to do some expatriating act and manifest a clear and unambiguous intent to renounce his U.S. citizenship before he could lose it. Under this modern status, he would not lose his “natural born Citizen” status by living in the country of his naturalized parents for so long without manifesting any intent to renounce his U.S. citizenship.

    The relevant momement to determine if one is a “natural born Citizen” is the time of birth. Apart from the possiblity of loss of U.S. citizenship by living in the country of his naturalized parents for so long, what ever he did later in life does not change his birth status. Of course, his subsequent life activities will go to develop his character and experience which would all be considered by an electorate should he want to run for the Presidency. Regarding a run for the Presidency, he is eligible, i.e., natural born citizen, 14 years a U.S. resident, and over 35 years old. But being eligible to be President is only a minimum requirement. For example, I do not think under today’s standards the electorate would go for a President who spent most of his life in a foreign country, who does not speak English, and who lived as a loan shark. But these factors are not eligibility factors. They also do not affect his “natural born citizenship” status. With these factors in mind, the public and the Electoral College would decide whether he deserves to be President.


    Under today’s standards, Crowe is a NBC on all 5 points also. The problem is that in the past, there were different standards. Hence, Dred Scott caused Crowe to lose any claim to citizenship that he could have made by arguing his class was a part of the original citizens.

    The 14th Amendment only confirmed who were born citizens and that persons naturalized in the United States were also citizens, provided both were subject to the jurisdiction of the United States. There were plenty of citizens before there ever was any 14th Amendment. The common law or statute defined citizenship in those cases.

    Before the 1856 case of Dred Scott, blacks were citizens in free states and not in slave states. But that citizenship was recognized only in the state that gave them the citizenship. Moreover, that state citizenship did not make that person a “citizen of the United States.” Being a citizen of just one state did not give that state citizen under Article IV, Sec. 2 privileges and immunities enjoyed by citizens of other states. Dred Scott held that blacks, whether free or not, were not United States citizens under the Constitution and so could not enjoy the privileges and immunities of citizenship in all the other states, including suing in the court of the United States. I believe that once blacks were made United States citizens by the Civil Rights Act of 1866 or the 14th Amendment (which overruled that part of Dred Scott that pertains to whether Dred Scott was a United States citizen), they became just “citizens of the United States” under the Constitution and Congressional Act. Their children and any subsequent generation children could all be “natural born Citizens,” provided that they were always born in the United States to United States citizen parents. The place of birth could be out of the United States as long as it could be reputed to be still in the United States (e.g. parents were out of the country serving their country, i.e., serving in the armies of the state or serving in some other diplomatic capacity).

    What are your further thoughts?

  21. Greg says:

    Their children and any subsequent generation children could all be “natural born Citizens,

    But not them? Even though Congress, when it was writing the 14th Amendment debated whether or not it would make 4 million blacks eligible for the Presidency?

    Senator Rogers from New Jersey:

    If you pass this bill, you will allow the negroes of this country to compete for the high office of President of the United States. Because if they are citizens at all, they come within the meaning and letter of the Constitution of the United States, which allows all natural-born citizens to become candidates for the Presidency, and to exercise the duties of that office if elected.

    I guess intellectual consistency requires that if you consider Wong Kim Ark to be just a citizen, since his parents could not be citizens, then the 4 million “Negroes” confirmed as citizens by the Civil Rights Act of 1866 also could not be more than just citizens.

    Historical record be damned.

    Senator Windom of Minnesota:

    Mr. Windom, of Minnesota, next obtained the floor. Referring to the speech of Mr. Rogers, he said: ” I wish to make another extract from the speech of the gentleman from New Jersey. He said,’ If you pass this bill, you will allow negroes to compete for the high office of the President of the United States.’ You will actually allow them to compete for the Presidency of the United States! As for this fear which haunts the gentleman from New Jersey, if there is a negro in the country who is so far above all the white men of the country that only four millions of his own race can elect him President of the United States over twenty-six millions of white people, I think we ought to encourage such talent in the country.

    “Sir, the gentleman has far less confidence in the white race than I have, if he is so timid in regard to negro competition. Docs he really suppose that black men are so far superior to white men that four millions of them can elect a President of their own race against the wishes of thirty millions of ours? Ever since I knew any thing of the party to which the gentleman belongs, it has entertained this same morbid fear of negro competition; and sometimes I have thought that if we were to contemplate the subject from their stand-point we would have more charity than we do for this timidity and nervous dread which haunts them. I beg leave, however, to assure the gentleman that there is not the slightest danger of electing a black President, and that he need never vote for one, unless he thinks him better fitted for the office than a white man.”

    Unfortunately for your intellectual consistency, Mario, no one ever considered the Mario Rule as being in operation. When the Civil Rights Act was passed, and when the 14th Amendment was ratified, everyone knew that blacks, not the children of blacks, were instantly confirmed as natural born citizens. When Wong Kim Ark was argued, George D. Collins argued, as his ultimate argument, that, horrors! if we allowed the children of Chinese people to become citizens, they could run for President! Wong’s side argued just as Windom did above, that if a child of Chinese workers turned out to be Confuscius reincarnated, then we’d be lucky to elect him.

    The two parent rule wasn’t invented, as far as I can tell, until 2008. The distinction between 14th Amendment citizens and real, true citizens, was invented earlier, but was confined to militiamen and tax-evaders’ “legal” arguments.

  22. Mr. Apuzzo,

    Your reply confirms that I did indeed understand your position, which is one of the purposes of these questions.

    In the case of SHICKLEGRUBER, there is really no legal controversy, and we both agree. I raised this example for a twofold purpose, first to point out that what we intuitively understand as allegiance does not fully align with the constitutional requirements, and second to demonstrate that any argument that is based solely on our intuition (or prejudices if you will) does not of necessity lead to a correct legal conclusion, such as “if Osama bin Laden visited the United States and fostered a child…”. Much of what I see argued on the natural born citizen issue uses phrases such as “unity of allegiance” or “lack of foreign influence”. With this example, I show that the constitutional requirement does not really prevent someone who is essentially foreign in upbringing and presumably sentiments (not having learning the language) from qualifying as President, and it is, as you rightly point out, the voters who are empowered to take all factors into consideration when electing the president. Voter discretion is something I would argue compensates for any perceived liberality of interpretation in what the Constitution requires of a President.

    Note: I did not give any weight to the possibility that SHICKLEGRUBER could have been a dual German-American citizen at birth.

    I think that you’re digging your own grave by associating with the likes of the Dred Scott decision, and so I like to give you every opportunity to work on that project. I was interested, although not surprised, that you said that a child born to a freed slave in South Carolina before the Civil Rights of 1866 was not a natural born citizen of the United States (making certain likely correct assumptions about SC law at the time). I think that your conclusions in CROWE point out an essential contradiction in your argument. When arguing against natural born citizenship for persons born in the United States of alien parents you essentially rely on the principle of natural law (from de Vattel) which is intuitive, immutable, and universal in character. Yet in this particular analysis, you think the conditions for natural born citizenship in natural law are something that can be switched on and off by the whim of the legislature. Of course the legislature (and certainly the Constitution) can determine who is a natural born citizen for legal purposes, but none has defined the term. Therefore the question is whether the legislature by manipulating certain legal statuses can create what would be from the view of natural law, a legal fiction (and I am sure that if the Supreme Court were to rule that Barack Obama is a natural born citizen of the United States, that there would remain a faction who continue to assert that the law of nature is a higher law than any man-made law or court decision).

  23. Welsh Dragon says:

    As an aside the “Adolf Schicklegruber” myth was popularised by the british to whom it was particularly plausible because the the English Common Law wouldn’t have allowed Alois to have been legitimised in that way.(An act of parliament would have been needed)

    Blackstone gets everywhere!

  24. Paul Pieniezny says:

    Doc, you do understand that by having Schicklgruber run against US Grant, you also introduce the “McCain counterargument”, do you not?

    “McCain could not raise the issue of Obama’s ineligibility, because he had a problem too.”

    Translate: US Grant, as the first Huguenot President after George Washington (who did not need to be NBC) would not have been able to contest Schicklgruber’s eligibility, because he himself was a dual citizen from birth.

    German nationality was state-based, so we cannot even be sure he had German nationality when he arrived back as a little child. If he had had to naturalize, or otherwise claim officially to be German, Apuzzo may interpret that as a desire to relinquish US nationality. Even if he was only two years old at the time. Do not expect the wingnutters to give away their last resort: Indonesian nationality!

  25. Mario Apuzzo says:

    Dr. Conspiracy,


    You wrote:
    “[Y]ou [refering to me] said that a child born to a freed slave in South Carolina before the Civil Rights of 1866 was not a natural born citizen of the United States (making certain likely correct assumptions about SC law at the time).” I did not say that. I said that Dred Scott, based on the societal norms that prevailed at that time, declared someone like Crowe a non-citizen. I also said that before Dred Scott, blacks were citizens in free states but not citizens in slave states.

    As to the question of whether Crowe could be a “natural born citizen” before the Dred Scott decision, under principles of natural law, persons decide to ban[d] together to form a society. They do so to gain mutual advantages. Others join them and each member of the group becomes a member of that communities making up the society. Thus joining the society, they have duties they have to fulfill. In return for fulfilling those duties, they receive the society’s protection. Let us call these members citizens. These citizens will then be the original citizens of that society. The children of those original citizens, otherwise known as the descendents of the original citizens, are the natives, indigenes, or natural born citizens.

    The society can also allow others to join them through naturalization. These natualized persons also become citizens and share equally with the born citizens in the society’s duties and advantageous. Natualized citizens can then create natural born citizens in the same way as did the original citizens, i.e., procreate second generation citizens who are then also considered native, indigenes, or natural born citizens.

    If Crowe and his parents could be considered a part of the original citizens, there is nothing in natural law stopping him from being a natural born citizen from the time of his birth.


    There is nothing inconsistent with my position on what is a “natural born Citizen.” Wong’s parents were not U.S. citizens. Wong Kim Ark declared Wong a 14th Amendment born citizen of the United States. But his parents were not both U.S. citizens. Wong therefore is a 14th Amendment born citizen of the United States but not an Article II “natural born Citizen.”

    Regarding the blacks that were declared born citizens by the Civil Rights Act of 1866 and the 14th Amendment, these laws declared all living generations of blacks U.S. citizens. If a black person belonging to the youngest generation had parents who were also declared U.S. citizens, then that younger generation black person would be a person born in the U.S. to U.S. citizen parents. That would make that person an Article II “natural born Citizens.” This conclusion is based on the notion that both generations were made U.S. citizens as of the time of birth which seems to be the only possiblity since these new citizens were not declared to be naturalized citizens and their status was not declared to be retroactive. Also, there is no jurisdiction or allegiance problem with the former slaves and their descendants, for they have been born in the USA for many generations and their birth allegiance spans back that far.

    On the other hand and applying a loose definition of “subject to the jurisdiction thereof,” if for some reason that youngest generation black person did not have a mother and father who also obtained U.S. citizenship through those laws (e.g. that young person was a first generation black person to be born on U.S. soil), then while that young black person would be a U.S. citizen, he would not have been born to U.S. citizen parents. In that case he would only be a 14th Amendment citizen but not an Article II “natural born citizen.”


    Finally, the 2008 Presidential election eligibility issue has nothing to do with race or color. The eligibility question applies to McCain (white) as much as it applies to Obama (black). Dragging race and color and the bad part of the Dred Scott case into the Obama eligibility issue is witout a doubt designed to cover up the scent and throw off the tracking dogs.

  26. SFJeff says:

    Haven’t you written repeatedly that NBC status is determined at birth?

    “If a black person belonging to the youngest generation had parents who were also declared U.S. citizens, then that younger generation black person would be a person born in the U.S. to U.S. citizen parents.”

    If NBC status was determined at birth, then your example wouldn’t work, because the parents were not citizens at the persons birth.

    Even assuming that your logic is correct, it raises this conundrum- a black person whose parents were alive at the enactment of the 14th Amendment would be NBC but a black person under the exact same circumstances, but whose parents had died prior to the enactment of the 14th Amendment would not be a NBC.

  27. SFJeff says:

    “Finally, the 2008 Presidential election eligibility issue has nothing to do with race or color. The eligibility question applies to McCain (white) as much as it applies to Obama (black). Dragging race and color and the bad part of the Dred Scott case into the Obama eligibility issue is witout a doubt designed to cover up the scent and throw off the tracking dogs.”

    If this was simply about ‘eligibility’ there wouldn’t have been half a dozen issues raised about why President Obama was not eligible.

    While I don’t doubt that some Birthers are truely motivated by a sincere doubt as to whether President Obama was born in the United States, it is my opinion that the vast majority of the Birthers would never have raised these issues for a white man(and indeed very few have questioned McCains eligibility), or for one whose political stance they agreed with. Some of it is racial, some of it is political, very little of the motivation is purely about ‘eligibility’. If it was, these same people would have asked the same proof of Bush(s), Clinton, Reagan and Carter.

  28. Bob says:

    “Finally, the 2008 Presidential election eligibility issue has nothing to do with race or color.”

    This is a bit of an overstatement. A quick glance at various supremacists sites will verify that some of them have taken up the eligibility cause, and there’s no doubt as to their motivations.

    There is undeniably some connection; the best Apuzzo can do is deny that that is his personal motivation, and demonstrate his sincerity by actively denouncing the racists that just so happen to share his views.

  29. Mario Apuzzo says:

    By the law of nature, the two generations of black persons were always citizens from the time of birth.

    In the case of the dead parents, the dead parents would be reputed to be citizens because when they were alive by the law of nature they were citizens.

  30. Mario Apuzzo says:

    Police Officer Bob hates his next door neighbor Joe and the whole world knows it. He hates him because he is of a different race, of a different political party, of a different religion, and of a different sexual persuasion. Police Officer Bob stops his next door neighbor Joe for speeding 50 mph in a 25 mph zone. Bob gets him on radar. At the scene, Joe admits he was late for work and he was speeding.

    In court, Joe pleads innocent and they have a trial. Bob testifies as to his clearly observing Joe’s car exceed the speed limit, his capturing Joe’s auto with his radar and to the readings, that he is trained to operate the radar, that he tested the radar to be working properly both before and after the stop, and that Joe admitted to him at the scene that he was going 50 mph in a 25 mph zone because he was late for work. Bob even is compelled to admit to the judge that he hates Joe for all those reasons because Joe has many witnesses ready to testify that they have heard Bob say so many times.

    Joe testifies that he was not speeding. He adds that Bob hates him for all those reasons and the whole world knows it and that is the reason why Bob stopped him for speeding. All of Joe’s witnesses also testify as to Bob’s hate for Joe.

    The judge rules that it might be true that Bob hates Joe for all those reasons and that it is not right for him to harbor such hate, that Bob’s hate for Joe goes to Bob’s credibility, but he adds that the ultimate issue is whether Joe was speeding as charged. Based on the evidence, the judge finds Joe guilty as charged.

    Was the judge correct or wrong in his decision?

  31. Bob says:

    Marco is not a police officer. Marco nonetheless attempt to pull Joe over, claiming Joe violated the law.

    When Joe ask Marco what law, Marco cites not the penal code, but a treatise about the criminal law of nations. When Joe asks by what authority did Marco pull Joe over, Marco says everyone has the right to pull Joe over because Joe has the power to blow up the world.

    The judge laughs Marco out of court.

    Was the judge correct or wrong in his decision?

  32. Greg says:

    Wong Kim Ark declared Wong a 14th Amendment born citizen of the United States.

    ADL Idiot Legal Arguments:

    The myth is that the Fourteenth Amendment created a distinct category of citizen, distinct from native born whites, consisting of non-whites and immigrants–and later women–so that the American population is divided between “preamble citizens” who are citizens of individual states but not necessarily citizens of the US nor subject to federal law, and “14th Amendment citizens” who are covered by federal law and who may not have the inherent rights. This myth is discussed in Koniak, When Law Risks Madness, 8 Cardozo Studies in Law and Literature 65 (1996), which also covers some other militia-type notions.

  33. Mario Apuzzo says:

    Bobbie is a nitwit

    With fleece as white as snow.

    The children came to ask why so

    The teacher said IQ so low.

  34. Greg says:

    I didn’t say your arguments were intellectually inconsistent, I said that you were bowdlerizing history in order to achieve that consistency. You ignore or elide the debate in the Congress during the writing of the 14th Amendment and the Civil Rights Act that its natural consequence would be to make the children of Chinese natural born citizens. That’s just one example.

    Foolish consistency is the hobgoblin of little minds, it is said. I’m not sure if what you’re doing is what Emerson had in mind when he coined that phrase, but it is a pretty good explanation of the danger of what you’re doing.

    You’ve got a theory, a novel one, one that had never existed until 2008 (not even Phyllis Schlaffley’s Eagle Foundation argued that BOTH parents need be citizens!) and you’ve got to strip off all facts and law that doesn’t fit with your theory. You’ve ended up with “facts” that support your theory, but they’re pale and sickly, having been stripped of their leaves!

    In short, your argument is entirely consistent. Novel. Frivolous. And entirely consistent.

  35. Bob says:

    If you could only write a legal argument that well.

  36. Greg says:

    11th Circuit:

    That an officer theoretically could validly have stopped the car for a possible traffic infraction was not determinative. Similarly immaterial was the actual subjective intent of the [officer]. The stop was unreasonable not because the officer secretly hoped to find evidence of a greater offense, but because it was clear that an officer would have been uninterested in pursuing the lesser offense absent that hope.

    Would a similarly situated officer have conducted the stop absent the racial animus?

    Would a similarly situated lawyer have sued a white candidate seriatim absent racial animus? George Romney?

    Didn’t New Jersey have some pretty high profile problems with racial profiling in traffic stops? Is this really the analogy you want to go with?

  37. Bob says:

    United States v. Smith, 799 F.2d 704 (11th Cir. 1986), for those playing along at home.

    The Smith court, however, expressly stated there was no probable cause (or even reasonable suspecion) for the initial stop.

    So Smith is inapplicable to Apuzzo’s hypothetical, which, in turn, is inapplicable to Apuzzo’s real-world activities.

  38. Mr. Apuzzo: By the law of nature, the two generations of black persons were always citizens from the time of birth.

    I cannot tell precisely how you are applying the law of nature. If you apply de Vattel literally, the second generation citizens are citizens from the time of birth ONLY if they were citizens at all. In the United States in the first half of the 19th century, that was not necessarily the case. There was considerable debate and variation in legislation both in time and in region over the question of whether free blacks were citizens, or could become citizens even if born free. As the time of the Civil War approached and fears of slave rebellions and rumors of slave rebellions were rampant, positions hardened.

    The 1838 ruling of Justice Gaston in North Carolina in the case in State v. Gaston (that free blacks were citizens) would have been difficult to repeat 20 years later. In 1859 Judge Harris of Mississippi said that Ohio might do as she wished and “confer citizenship on the chimpanzee or ourang-outang”… but no technicality of the law of the Constitution would force “states not thus demented, to forget their own policy…and lower their own citizens.” Mitchell v. Wells, 37 Miss. 235, 264 (Miss., 1859).

  39. Mario Apuzzo says:


    Are you telling me that the officer’s racial animus which only exists in his brain somehow magically changed the realty of whether or not the motorist was violating the law?

  40. nbc says:

    Your question suggests that you fail to recognize the legal foundations or lack thereof of this case.

  41. Bob says:

    Exactly; Apuzzo’s hypothetical presupposed not only was there probable cause to stop the driver (Obama), but that the driver has committed a crime. So the bigotry of the officer (Apuzzo) is irrelevant.

    But in real life, there’s no law supporting Apuzzo’s actions, making bigotry a relevant issue of inquiry. (Which is why Greg cited Smith: to rebut Apuzzo-in-real-life, not Apuzzo-the-fake-officer.)

  42. SFJeff says:

    Bad analogy Mario, but I do appreciate your agreement that the birther movement is racist in nature.

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