As the December 15th deadline approaches for the Electoral College to cast their votes for President, all of the Barack Obama eligibility issues point to the Electors, individually, to weigh a consideration of whether or not he is absolutely eligible to hold the office of the presidency.

This post contains the following points of interest:

• What the Constitution says regarding this important body
• A natural born citizen chart produced by theobamafile.com
• The National Archives posting of the Electoral College Process (along with links to the “bound” issue)
• A political scientist’s analysis of the Electoral College
• A YouTube video sponsored by democratic-disaster.com addressing the Electors

Update: I have also included Leo Donofrio’s recent blog posting on how the 14th Amendment framers and Associate Justice Antonin Scalia have come to view “natural born citizen.” It’s a rather lengthy but excellent read…

Regardless of the outcome of the many lawsuits filed (or to be filed) regarding Barack Obama’s eligibility, it would be hard to fathom that even the Supreme Court would actually stop the Electoral College from doing its constitutionally-prescribed job of directly electing the 44th President. While the Supremes could require other actions to take place, let’s start with the basics:

Here is what the Constitution has to say about this group (Article 2, Section 1, Clause 2 and Amendment 12 (which effectively replaces Clause 3):

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. …

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. …

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; — The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; — The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. — The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

And, of course, Clause 5 stipulates exactly who can be President:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

theobamafile.com has produced a chart based on answers from the cases United States v. Wong Kim Ark and Perkins v. Elg.

The big question is this: since it’s already an established fact — something to which Leo Donofrio has attested as well — that Barack Obama’s father was a British subject under the colony of Kenya in 1961 (and that the same law made all of his father’s children British subjects regardless of their “at birth” geographical location), does this make Barack Obama ineligible to be President?

Barring a decision from a Supreme Court lawsuit or a given State’s ruling to show documentation, it would then be up to the Electors to decide how to proceed forward on this issue (see my page about the Electoral College Process for more details).

One political scientist faces this issue very even-handedly (the article is a great read; here are a few excerpts):

Dr. Mary Maxwell, political scientist, said today: “Obama’s silence about his citizenship is indefensible and unworkable. Next Monday, the 538 members of the Electoral college meet and they are at risk, themselves, of violating state election laws if they participate in a fraud.”

“If a presidential candidate’s claim that he meets the requirements are later found to be false,” Maxwell said,”one or more of the 50 states could bring charges against him. But that would be a terrible thing if it comes after Inauguration Day. It would be better if a state would apply its law stringently as early as possible For example, the Election Commission of Alabama has authority to cite for contempt any person who refuses to deliver, upon subpoena, relevant items.”

Maxwell said: “An Obama spokesman has called the eligibility controversy ‘garbage,’ and wants to keep pertinent records under seal.” “Privacy is of great value,” Maxwell acknowledged, “but when one signs the form to become a candidate for elective office, one swears, in most states, that one is eligible.” …

“Failure to deal with Obama’s issue is likely to cause an upset on Dec. 15th,” said Maxwell. “Since Nov. 4th, the public has been told that the Electors will cast 373 ballots for Obama, and 165 for McCain. Typically, all Electors ‘obey’ their party but the Constitution does not require them to do so,” she noted, “and in a 1992 case, Ray v Blair, the Court ruled that political parties may give direction but they did not say the Elector is thus coerced.”

“It is amazing to realize that if Obama drops out, the Electors are not obliged to choose his running mate, Joe Biden, or the next-best from the Democrat’s summer convention, Hillary Clinton,” Maxwell said. They can even choose someone that ran in a third party, such as Bob Barr or Cynthia McKinney.” She remarked, “Indeed they are free to elect a citizen who never campaigned.”

“Happily, panic need not occur if no individual gets a majority on Dec. 15th,” Maxwell stated. “As usual, the Founding Fathers foresaw that outcome, and arranged for the House of Representatives to choose the president from the three highest on the Elector’s list,” she said. “and they would vote as states, with each state having one vote. The National Archives website says that would occur on Jan. 8th, 2009.” 

For your viewing pleasure, the following is a YouTube video sponsored by the democratic-disaster.com forum. While my only critique of the video is that it doesn’t address Barack Obama’s at birth issue (as addressed, above), it does call on the individual Electors to seriously consider Barack Obama’s eligibility when they go to cast their votes:

From naturalborncitizen.wordpress.com:

“NATURAL BORN CITIZEN”: DEFINED BY 14TH AMENDMENT FRAMERS AND IN TREATISE RELIED ON BY SCALIA
Posted in Uncategorized on December 11, 2008 by naturalborncitizen

PREAMBLE

This week has been quite enlightening as to the blatantly obvious fact that our “Fourth Estate” press corps have been transmogrified into propaganda ponies polly wanna crackering whatever may be handed down to them from “The One Corporation -- your source for everything…” (cue eery theme tune).  They don’t report the news anymore. No.  Now they tell you what they want the news to be.  There’s a huge difference.

For the record, my law suit was brought to remove three candidates from the ballots - three candidates who have big Constitutional issues as to their eligibility.

At the time of his birth, Obama was a British/Kenyan citizen by descent of his father.  Because I pointed out pesky international laws which governed his citizenship due to the fact that a father has every legal right in the world to have the laws of his nation apply to his son, I have been labeled a conspiracy freakoid of nature.

Never mind that I included demands for Panama John McCain and the Nicaraguan born Roger Calero to also be removed from our ballots.  No, they don’t want to talk about that do they -- because it would blow the “he’s just another Obama hater” mantra clear out of play.

A citizen (me) raised the Constitutional issue of first impression as to the meaning of “natural born Citizen” in Article 2, Section 1, of the United States Constitution -- that ultimate pesky legal document for those who would rather “be” the law instead of following it.

What are the Fourth Estate propagandists worried about?  Thou doth protest too much.  Me thinks so.  Why?  Because the law is against their man -- it indicates Barack Obama is not a natural born Citizen of the United States.  And most of the media pundits have basically agreed by default.  I say this because when yelling and mocking the issue, their main argument is not that the law is on their side (they know it isn’t), but rather that the law shouldn’t be discussed at all.

PRESIDENTIAL PRECEDENT

Other than the fraud perpetrated by Chester Arthur (see prior stories), every post grandfather clause President of this nation was born in the United States to parents who were US Citizens.  In their wisdom, they recognized the danger in having people born under the jurisdiction of another country taking the role of commander in chief.

They did this recognizing that multitudes of loyal men wouldn’t be eligible, but they also knew that they couldn’t see into the soul of allpossible candidates, so just to be safe, they put a restriction in the Document which is there to protect us from a sneak attack in the oval office by somebody who might have loyalty to another nation.  The framers themselves were good men, loyal to this infant nation, but they recognized that people like them had to be excluded from future Presidential eligibility as an order of protection.  McCain and Obama know that.

And in my stay application, I never accused either man of disloyalty.  Quite the opposite.  Had any of these morose media maniacs actually read the papers I filed with the United States Supreme Court (before election day), this is what they would have found as to Barack Obama:

As regarding the issues surrounding Senator Obama’s birth certificate, and if it may please this Honorable Court, I would point out that Senator Obama has not  been presented with a genuine legal request from a party with proper standing to command him in any way, and therefore he has no legal responsibility to submit or to bend his integrity.  And for that, he certainly deserves respect.

Appellant believes that if Senator Obama is presented with a legal request from a government authority sanctioned to make such request, that Senator Obama will respond accordingly and put this issue behind him forever.

That being said, petitioner regretfully submits that since candidate Obama was born to a Kenyan father, he also is not eligible to the office of President since he is not a “natural born citizen” by the Constitution.

As to John McCain they would have found this:

Senator John McCain is an American patriot who has valiantly suffered more for this country than most of us ever will.  He has shown bravery beyond that which the country has any right to ask, and it is with very deep and sincere regret that I respectfully request that this Honorable Court order the Secretaries of the several States to remove John McCain’s name from the ballots.

I couldn’t have shown the candidates more respect.  But both of them should have known that if either were to become President -- despite the loyalty they have for this country -- the dam would be broken and the waters of foreign influence would be forever capable of drowning our national sovereignty and placing our military in the hands of enemies from within.

IT’S NOT ABOUT OBAMA OR McCAIN - IT’S ABOUT WHO COMES NEXT.  THEY SHOULD HAVE KNOWN THAT AND FALLEN ON THEIR PRESIDENTIAL SWORDS TO PROTECT THIS COUNTRY.

The truly patriotic thing for both to do was pass the baton to another worthy candidate not burdened with eligibility issues.  I understand the lure of being President and all the power, glory, responsibility and possibility for enlightening change that entails.  But the precedent to be set is fraught with danger.  And the candidates knew that.

I suppose they’ve taken a view that the good they might bring to our Country far outweighs any risk from who may come next.  But knowing the slippery slope of history, only hubris could make such a call.

OBAMA’S ADMISSION

Like it or not, rich or poor, great or strong, Democrat or Republican, Obama was born under the jurisdiction of Great Britain via Kenya.  There is nothing conspiratorial about saying that.  Obama has it posted on his own web site. It’s this very definition which I included in Cort’s Wrotnowski’s brief.  Here’s what it says at Obama’s web portal, Fight The Smears:

When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children. (Emphasis added.)

There it is.  Obama is telling you his status was “governed” by a foreign jurisdiction.  This is no theory.  This is a fact.

I have always believed Obama was born in Hawaii.  I told numerous reporters that there was no way in hell Obama would post a fraudulent birth certificate at his web site.  I said that over and over, but they’re still lying about my position.  Why not tell the whole truth and nothing but the truth?  Is the truth now part of a conspiracy?

Instead of recognizing that a legitimate legal nexus exists for Obama’s eligibility to be questioned, the great bulk of main stream media outlets have pulled out all the stops to mock, attack, accuse, hate and discredit anybody willing to consider the law.

What have we come to?

The opposing media argument concerns the will of the people in the election and that the Supreme Court shouldn’t overturn the intent of 65 million voters.  It’s an argument that fails -- if the candidates were not Constitutionally eligible then the election was a fraud no matter how many voted for Obama.

My law suit was meant to return the election to the Constitution.  It’s the Republican and Democratic parties that overturned the election stuffing two ineligible candidates down our throats with no regard whatsoever to the future precedent it would set.

The people are subservient to the Document and if we don’t keep it that way, we have plenty of historical examples throughout history detailing exactly what will happen to us if the Document is defeated.

Regardless, should the people demand that Constitutional restrictions in Article 2, Section 1, be removed from the Document, they can lobby their political representatives to introduce an amendment, and if such amendment were to be ratified by three-quarters of either the state legislatures, or of constitutional conventions specially elected in each of the states, then they can have any President they like.

But as long as Article 2, Section 1, is controlling law, it’s those who are trying to attack all review of it who are the conspiracy theorists.  All I did was ask the Supreme Court to rule on an issue which has caused multiple law review articles to be written and countless news reports and blogs to be published.  It has generally confused legal scholars for over two centuries.

“Ooh, look at that crazy conspiracy nut Donofrio,” they squawk.   Me so crazy.  Well, maybe I am a bit strange (Who the hell isn’t?) but not for my understanding of the natural born Citizen issue.  And that’s the only issue before the Honorable Court.

That being said, let’s now take a look at two established and respected legal sources which define the term “natural born Citizen” as a person who is born in the United States to parents both of whom are “citizens”.

NATURAL BORN CITIZEN DEFINED THROUGH HISTORY

I could understand rabid attacks if the legal theory I was relying upon had been thoroughly discredited by a Supreme Court decision or by statute, or even by historical texts, but it’s quite the opposite.  Beside 200 years of Presidential precedent, the great weight of authority supports the argument that Obama is not a natural born Citizen.

I understand the countering argument and I’ve welcomed debate of both sides of the issue in comments to this blog.  But most of the published arguments on the natural born Citizen issue are recently published law review articles which haven’t done a very good job of presenting the whole truth and nothing but the truth.

THE FRAMERS OF THE 14TH AMENDMENT

Despite popular belief, the 14th Amendment does not convey the status of “natural born Citizen” in its text.  It just conveys the status of “Citizen”.  And it’s very clear that in the pre-amendment Constitution, the Framers made a distinction between a “Citizen” and a “natural born Citizen”.  The requirement to be a Senator or Representative is “Citizen”, but the requirement to be President is “natural born Citizen”.

From the 14th Amendment:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”

But even as to this conveyance of citizenship, those who were responsible for drafting the 14th Amendment made it clear that -- to them -- the meaning of “subject to the jurisdiction thereof” meant subject only to the jurisdiction thereof.

Dr. John Fonte, Senior Fellow of The Hudson Institute had this to say about the issue at a Congressional hearing on dual citizenship from September 29, 2005:

The authors in the legislative history, the authors of that language, Senator Lyman Trumbull said, ”When we talk about ’subject to the jurisdiction of the United States,’ it means complete jurisdiction, not owing allegiance to anybody else.” Senator Jacob Howard said that it’s ”a full and complete jurisdiction.”

This illustrates that Congress recently discussed the issue, and they can’t claim they were unaware. But we don’t have to take Dr. Fonte’s word for it. The following discussion by the various 14th Amendment Framers took place on the Senate floor.  I took it from P.A. Madison’s research at http://www.14thamendment.us (use his link for footnotes):

It is clear the framers of the Fourteenth Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil.  Again, we are fortunate enough to have on the record the highest authority tell us, Sen. Lyman Trumbull, Chairman of the Judiciary Committee… and the one who inserted the phrase:

[T]he provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ’subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.

Then Madison quotes Sen. Howard, another Framer, concurring with Trumbull:

Sen. Howard concurs with Trumbull’s construction:

Mr. HOWARD: I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.[3]

 

Mr. Madison continues with even more proof of what the 14th Amendment Framers meant:

Sen. Johnson, speaking on the Senate floor, offers his comments and understanding of the proposed new amendment to the constitution:

[Now], all this amendment [citizenship clause] provides is, that all persons born in the United States and not subject to some foreign Power–for that, no doubt, is the meaning of the committee who have brought the matter before us–shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born to parents who at the time were subject to the authority of the United States.[4]

No doubt in the Senate as to what the citizenship clause means as further evidenced by Sen. W. Williams:

In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States…All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, ’subject to the jurisdiction of the United States,’ to mean fully and completely subject to the jurisdiction of the United States.[5]

Madison saves for last the greatest authority on the issue:

Rep. John Bingham of Ohio, considered the father of the Fourteenth Amendment, confirms the understanding and construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:

[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…[6]

It’s important to note this statement was issued by Bingham only months before the 14th Amendment was proposed.

In conclusion, I would like to thank reader “John Boy” for pointing to Justice Scalia’s opinion in District of Columbia Et Al. v. Heller.  In that case, Justice Scalia took into consideration a certain historical legal reference:

The common references to those “fit to bear arms” in congressional discussions about the militia are matched by use of the same phrase in the few nonmilitary federal contexts where the concept would be relevant… Other legal sources frequently used “bear arms” in nonmilitary contexts.10

Now look at “footnote 10″:

E. de Vattel, The Law of Nations, or, Principles of the Law of Nature 144 (1792) (“Since custom has allowed persons of rank and gentlemen of the army to bear arms in time of peace, strict care should be taken that none but these should be allowed to wear swords”);

Since Justice Scalia cited to this legal textbook in March of 2008, it’s not outrageous to think he might also refer to “The Laws of Nations” on the natural born Citizen issue?

I’ll leave you now with the relevant textbook definition of natural born citizen. The following was published in 1758.  This definition, added to all of the above, certainly establishes a rational legal basis to hold that Barack Obama is not a natural born Citizen.  And more than that, it puts the burden on those who deny it to don the tin foil hat of despair and bring forthwith to the table of honest debate their own bed of authority to lie in:

§ 212. Citizens and natives.

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.