Eligibility Update: Open Government Dialog Commentary, Mario Apuzzo on HR1868, Obama’s Selective Service Update
The White House, via the National Academy of Public Administration, began using IdeaScale.com’s Open Government Dialog web site to help gauge the public’s interest in what kinds of data should be made transparent with this Administration. The fact that scores of posts regarding the President’s eligibility were posted on the site significantly riled up others in the community, resulting in the following “slimed” posting from FederalComputerWeek (excerpted):
Let’s cut to the chase: The Open Government Dialogue — the Obama administration’s much-ballyhooed initiative to engage with the public in an online forum — got slimed. …
Participants were invited to submit ideas and rate other people’s ideas with a thumbs up or thumbs down. The system would tally the votes and assign a score to each suggestion. This mechanism would make it possible for the public at large to identify the most important issues and police the site for off-point or abusive content.
That was the theory anyway, and it worked for nearly a week, but thenWorldNet Daily’s editors got wind of it.
The folks at WorldNet Daily, an online political publication, have been trying to drum up national interest in a topic that the mainstream media generally ignores: Was the president born in the Unites States, and does he have the birth certificate to prove it?
The Open Government Dialogue provided WorldNet Daily’s editors with a perfect forum, one that was highly visible and only lightly moderated.
Go get ‘em, they told their readers. And it worked.
“Hours after [WorldNet Daily] alerted the public to a White House Web site on ‘open government dialogue,’ most participants are calling on Barack Obama to release his elusive ‘long-form’ birth certificate to establish his constitutional eligibility to serve as president,” the editors wrote in a May 31 article. …
The article was picked up by various blogs with similar interests, including Morality 101, Free Republic and The Ron Paul War Room. The topic also hit Twitter, with numerous tweeters encouraging readers to keep the birth certificate issue alive at the Open Government Dialogue. …
However, the NAPA team also provided dialogue participants with the ability to flag entries that were off point or that duplicated other entries. In the final days of brainstorming, site managers began reviewing and, in many cases, removing the long stream of repetitive posts. The outcry was immediate. …
The birthers, as they have been dubbed in the blogosphere, proceeded to flood the site with more posts. “I’m sitting here looking at all the people who’ve had their posts deleted because they are raising a legitimate issue: Where’s The Birth Certificate,” wrote Scott Lanter. “And at the top of the page it reads, ‘Open Government Dialogue.’ It’s not dialogue when people are silenced. What exactly is this site’s definition of ‘dialogue?’”
All interactive sites are vulnerable to gaming, writes Micah Sifry at theTechPresident blog. “But what the ‘birthers’ are doing is the equivalent of spamming up a public bulletin board and reducing its utility for everyone else.”
NAPA and the Obama administration have moved into the next phase of the Open Government Dialogue, focusing the conversation on a handful of specific issues. But looking ahead to the prospect of similar endeavors — and the administration has made clear that engagement will be part of its standard operating procedure — it seems fair to question the viability of such forums.
Is it possible to conduct a national online dialogue that is civil and productive? Or will any online public discourse inevitably be smothered by slime?
TechPresident’s Sifry is hopeful. “Presumably, the more often government invites public participation and the lower the visibility of the results, the less often these nuisances will occur,” he wrote. [emphases original]
And then there was the editor’s note for comments on this posting…
Editor’s note: We will not post any comments regarding Obama’s birth certificate. But we encourage your comments on how the process used to manage the Open Government Dialogue or other aspects of how the government should interact with the public online.
Shocking, I know. An “open” government dialog that on the one hand wants input from readers — and has the ability to police itself via iconic thumbs up/down scoring on posts — but doesn’t want that much input from readers, especially if you’re going to be discussing topics like Article 2, Section 1, Clause 5 of the Constitution. Somehow, that issue — the 800 Pound Gorilla question — is completely taboo.
Yet, the main point shouldn’t be forgotten. Technology is a great thing, and that’s what caused the posting to consider eligiblity questions synonymous with “slime” (how that parallelism occurs, I haven’t the slightest idea). Further, when the People are consistent and persistent with their viewpoints, the elite are going to throw fits of conniption, like the above.
Good on ya, folks! Making an Administration that promised so much transparency but has provided so little — especially with respect to this President’s background documentation — get mad at you can never be a bad thing. Remember, the Constitution — if you help uphold it — guarantees you rights, not the government.
Next we have attorney Mario Apuzzo, representing Plaintiffs in Kerchner v. Obama, commenting on HR1868, the Birthright Citizenship Act of 2009 (excerpted):
Congressman Nathan Deal (R-Georgia) has recently introduced in the House the Birthright Citizenship Act of 2009. The stated purpose of the bill is to amend section 301 of the Immigration and Nationality Act to clarify those classes of individuals born in the United States who are nationals and citizens of the United States at birth. The bill is included on the OpenCongress.org web site at http://www.opencongress.org/bill/111-h1868/show. The summary of the bill at the site states the following:
“OpenCongress Summary:
This bill would eliminate birthright citizenship for children born to undocumented immigrants in the U.S. Current U.S. law automatically recognizes any person born on American soil as natural born citizen. Under the bill, only children with at least one parent who is a U.S. citizen, a legal permanent resident, or an undocumented immigrant serving in the military would be considered citizens.”This summary contains a very serious error. It states that “Current U.S. law automatically recognizes any person born on American soil as natural born citizen” (emphasis supplied). This is not a correct statement of the law. Any legal statement referring to citizenship is contained in the Fourteenth Amendment and Congressional Acts. The former refers only to “citizens of the United States and of the State wherein they reside. . .” and the latter only to “citizen.” There is absolutely no mention in the amendment or statutes of a “natural born Citizen.” There also is no Supreme Court decision that says that an Article II “natural born Citizen” is the same as an Article I, II, III, and IV and Fourteenth Amendment “Citizen.”
There is a critical difference between a “natural born Citizen” and a “citizen.” The Constitution itself does not tell us what a “natural born Citizen” is. Hence, we simply cannot just apply the term to a given situation. Rather, we have to construe from the Constitution itself and other extrinsic sources such as historical events, constitutional debates, congressional debates, case law, statutes, and any other relevant information what the Framers meant by the term. The Constitution uses both “natural born Citizen” and “Citizen of the United States.” It uses “Citizen of the United States” in Article II’s grandfather clause, giving such a citizen the right to be President, but only if born prior to the adoption of the Constitution. It even says that a President must be a “natural born Citizen” (implying from birth) and a Senator or Representative need only be a “Citizen of the United States” for 9 and 7 years, respectively (a fortiori showing that he/she could be a naturalized citizen). Basic rules of constitutional construction tell that the terms are not interchangeable. These rules also tell us that in construing the Constitution, special meaning must be given to the words “natural born.” We must give meaning to the Framer’s use of the words “natural born.”’
The Constitution does not state that Congress has the power to determine and define what a “natural born Citizen” is. It is important to note that the Framers did not write in Article II “natural born Citizen of the United States,” but rather just wrote “natural born Citizen.” Why did they omit “of the United States” which they appended to the word “Citizen” when using that term? When the Framers included into Article II “natural born Citizen,” they used the definition of the term as established by the law of nations which the heavily relied upon in drafting the Constitution. The law of nations, which followd the jus sanguinis tradition, was based on natural law that had been accepted by the international community since time immemorial. Hence, a “natural born Citizen” did not need any artificial territorial boundry as part of its definition. Of course, it was understood that such a citizen would belong to the civil society or country called the United States of America. The definition from the law of nations became part of American common law and that definition was that a “natural born citizen” was one that was born in the country to a mother and father who were also citizens of the country. Our U.S. Supreme Court confirmed this definition when it stated: “At common law, with the nomenclature of which the framers of the constitution were familiar, it was never doubted that all children born in a country, of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners.” Minor v. Happersett, 21 Wall. 162 (1874). It is clear from the language used that the Supreme Court borrowed its concept of what a “natural born Citizen was from Vattel. See Vattel, The Law of Nations Sec. 212-33. It is also important to note that the Supreme Court said that the Framers were “familiar” with this principle. …
Thus, the bill summary should be reworded as it is not correct to say the bill is addressing “natural born citizenship.” It is addressing statutory “citizenship at birth” which is an entirely different legal term of art. The Congress, when debating this bill, should for posterity’s sake be made to state its position in the public record on the question of whether it believes there is a difference between a 14th Amendment born “citizen of the United States” and an Article II “natural born Citizen.” This issue is critical to the question of who is eligible to be President under Article II. While Congress’s debate and opinion will not be binding on any court of law, at least their opinion and rationale will provide some guidance for the courts and the public.
Following up on a posting from back in November of 2008, the NativeBornCitizen blog provides an interesting update to the question of allegations that Mr. Obama’s Selective Service registration was forged. Clicking on the link will take you to the details (which primarily has to do with a now-cleared-up discrepancy on the Document Locator Number) as well as comments from Debbie Schlussel and prolific commenter on this blog and other sites, “HistorianDude.”
As mentioned above, a current listing of Mr. Obama’s still-sealed background documentation is here; citizen grand jury updates and eligibility lawsuits can be found here.
-Phil
24 responses to Eligibility Update: Open Government Dialog Commentary, Mario Apuzzo on HR1868, Obama’s Selective Service Update
IN RESPONSE TO:
“Participants were invited to submit ideas and rate other people’s ideas with a thumbs up or thumbs down.”
I have to laugh when “polls” are taken asking to
answer with a “thumb’s up” or thumb’s down.
There are different meaning’s to this, and the “pollster’s”
use it which ever way they want.
I have watched show’s on the History channell and have read
several version’s as to the true Roman meaning.
Thumb’s Up, was usually followed by placing the thumb
accross the neck, meaning to slit the throat, or stab.
Thumb’s Down, was meant to lay the weapon down and
spare a life.
In Bangladesh, Iran, Iraq and Thailand it is traditionally an obscene gesture, equivalent to the use of the middle finger in the Western world. (on wiki)
There is also:
http://www.wordquest.info/thumbs-up.html
Whenever a combatant was seriously wounded, the presiding judge, or referee, was called upon to determine whether the man should live or die, depending on how well he had put up a fight. The judge usually based his decision on the desires expressed by the mobs in the stadium; whether they would cheer, applaud, and give the thumbs down if they liked the man, who was then carried away to be treated for his wounds. If, on the other hand, they gave him the silent thumbs-up treatment, his opponent was given the signal to execute the mortal blow. The corpse was then dragged off like a dead animal.
My, My, How tricky the pollster’s are getting…….Dan,NY
Whatever happened to: Do you “AGREE” or, “DISAGREE” ???
http://www.whitehouse.gov/the_press_office/FreedomofInformationAct/
Yeah, sure
If you had approached the website in an orderly, grown-up fashion, you might have been able to show there was interest in your topic. Posting the same comment over and over, when the rules of the site said “please don’t post duplicate comments”, makes you a Nuisance. You spammed the site, acted like any unruly group of malcontents, not like adults with a legitimate concern.
Even forgetting for a moment the evidence at hand on the matter the way that 4 things have been treated by Hussein and his supporters prove almost beyond a doubt that he is a usurper as POTUS.
1. The nationwide shutout of the “Where’s The Birth Certificate” billboards
2. The purging of eligibility threads from the “Open Gov. Dialog” website and the prohibition of further posts on the subject
3. Hussein spending over $1 million in legal defense funds on the eligibility lawsuits.
4. The dismissal of all of the eligibility lawsuits even before evidence is allowed to be brought
I would be willing to wager my Lakers 2010 NBA title jacket that Hussein is sitting illegally as POTUS.
earl,
Thanks for this unsolicited advice. I’ll be sure to consider the source
[grin]
-Phil
In an interview last night, Mario stated that he hadn’t received a ruling from the Court on the government’s motion to extend.
Neither has the DOJ filed an answer to the suit.
In Berg’s case, Berg had to file that the defense’s lack of an answer admitted all charges before the defense bothered to answer.
Is that option available in Mario’s case?
earl is off in hyper space again, directing his vague comments
to pronouns
here’s a real news story
obama ratings finally fall to ZERO !
coincidence that it occurred after his true identity is revealed from his speech in Cairo? His snub of our allies in Germany and France? And they say Bush was bad for Western Europe (no evidence whatsoever of that), Obama’s repeated snubs of our long time allies is bad news for all of America. Congress has to look at his roots and throw him out.
http://www.rasmussenreports.com/public_content/politics/obama_administration/daily_presidential_tracking_poll
See how easy it is to produce a High Quality Looking but Phony Certification of Live Birth (COLB) and shoot a digital image of same and put it online, seal and all. Here is one for Mickey Hussein Mouse II. Isn’t PhotoShop amazing as to what it can do. It can even make a usurper President. Such a digital image as this person created in this online page is all the Obama has given to the electorate and general public. The probative value of the online digital image of a computer generated paper document claiming Obama was born in Hawaii is zero. For starters he needs to allow independent professional expert paper document examiners examine the underlying paper document Obama used to make the digital image of his COLB. And that is only for starters. Next he needs to allow release of certified copies of all paper documents in his birth records files in the vaults in Hawaii.
http://i180.photobucket.com/albums/x13/Mactographer/birth_certificate_2-1.jpg
http://www.thebirthers.org/
RJ
Where is Francis John, our resident historian. I hope he takes issue with Open Congress’ egregious gaff, in saying that US Law holds than anyone born on US Soil is a natural born citizen.
I for one would like to see a congressmen point to the alleged law, and cite it for me…
Will post here (nativeborncitizen.com) and on the Right Side of Life. My previous attempt to post a comment on the nativeborncitizen site was unsuccessful.
There are three versions of Obama’s Selective Service form on the page at:
http://nativeborncitizen.wordpress.com/2009/03/27/was-obamas-selective-services-registration-form-doctored/
Two people have posted similar copies of the Selective Service form and put their names on the posts. There is also a slightly different unclaimed “Mystery Post”. Why did the person posting the Mystery version not personally claim it?
The letter posted on the page to Mr. Arduini from Mr. Flahavan begins
“Facts will never trump speculation by conspiracy theorists.”
Very objective and professional? Personally, I would like to know the facts and I don’t think that the government is giving us the whole story. I KNOW that the MSM is not giving us the whole story.
Mr. William Lolli, if you really have another document, please submit copies of the same to sites with both points of view so that both sides can review the document no matter what it contains. If you have a scanner, make a pdf, and attach it to an email to a moderator. If you have no email addresses, post a comment offering the document on sites such as http://www.therightsideoflife.com so that Phil can contact you.
PS My previous attempt to post has just now appeared at nativeborncitizen.com
John Galt, let us focus on some of your misinformed statements…
Jon Galt says:
June 5, 2009 at 10:09 am
Even forgetting for a moment the evidence at hand on the matter the way that 4 things have been treated by Hussein and his supporters prove almost beyond a doubt that he is a usurper as POTUS.
1. The nationwide shutout of the “Where’s The Birth Certificate” billboards
There was no nationwide shutout of these billboards. Believing WMD, which at one time certified the COLB as authentic, meaning that the information it contained was authentic, such as Obama being born in Hawaii, that they were shut out is a stretch. CBS is a private entity and they have the right to not display billboards that they feel are in bad taste. And since they billboard they wanted to put up was contridictory to all of the legitimate evidence that has been produced, they passed. No conspiracy but for the birthers out there like you if someone does not agree with your point, they must be brainwashed or Obama must be behind things.
2. The purging of eligibility threads from the “Open Gov. Dialog” website and the prohibition of further posts on the subject
That was because people did not follow the rules and if you had read some of the posts there it had noting to do with the topic at hand. It was basically spam and like any webmaster they have a right to do what they want with things.
3. Hussein spending over $1 million in legal defense funds on the eligibility lawsuits.
Again have we ever seen any proof that Obama has spent any money? The Obama lawyer in CA has already indicated that he was doing it pro bono, and most of the other cases were dismissed long before a trial had taken place. This one million dollar fantasy has been floated by Orly and other opponents of Obama without as usual any proof.
4. The dismissal of all of the eligibility lawsuits even before evidence is allowed to be brought
That is because of “lack of standing”. You cannot use a trial or discovery to compel records or evidence. That is not how our legal system works. The birthers would have to provide the court with legitimate evidence contrary to the COLB. Using the unverified Indonesian school record, the “Polarik” analysis where he did even use his own name, the infamous “grandmother” tape where once she actual understood the question states that he was born in HI and any other fantasy does not work in the court of law. Besides according to the US Constitution only Congress can put the President on trial. That is why every lawsuit will be dismissed.
Just as additional piece of information regarding the COLB that was submitted by President Obama, an article in the Honolulu Star Bulletin posted on June 6th, 2009 had this to say…Provided is a link to the article, which explains some things regarding COLB and birth certificates in more detail…
http://www.starbulletin.com/columnists/kokualine/20090606_kokua_line.html
“The state Department of Health no longer issues copies of paper birth certificates as was done in the past, said spokeswoman Janice Okubo.
The department only issues “certifications” of live births, and that is the “official birth certificate” issued by the state of Hawaii, she said. And, it’s only available in electronic form.
Okubo explained that the Health Department went paperless in 2001.
“At that time, all information for births from 1908 (on) was put into electronic files for consistent reporting,” she said.
Information about births is transferred electronically from hospitals to the department.
“The electronic record of the birth is what (the Health Department) now keeps on file in order to provide same-day certified copies at our help window for most requests,” Okubo said.
Asked for more information about the short-form versus long-form birth documents, Okubo said the Health Department “does not have a short-form or long-form certificate.”
Because Obama requested is Birth Certficate in 2007 at the begining of his Presidential campaign, according to the State of HI he could not receive his actual birth certificate. And this misinformation about a long form and a short form, the health department indicated that this does not exist. It seems like there is only one form. However I am sure the birthers out there will not be satisfied with this. They will claim it is some sort of Obama consipiracy. The only issue is as Phil said, that the Supreme Court or Congress needs to define what a “natural born citizen” is.
KJ,
I already have all relevant paperwork in my possession from William. While I have been waiting for other, related paperwork from Dr. Polarik, I may have to go ahead and get up a posting regarding William’s FOIA request and other commentary on same shortly, once I get through moderating comments.
-Phil
Black Lion wrote:
The Supreme Court and Congress have no such need. Interpreting the Constitution is not the job of Congress, and according to the Supreme Court, the Constitution’s case or controversy clause (Article III, Section 2) prohibits federal courts from issuing advisory opinions.
If you need to know what “natural born citizen” means, you can easily find out. Free sources include http://slate.com/id/2183588/ and http://books.google.com/books?id=cJENAAAAYAAJ . Black’s Law Dictionary is widely available and not too expensive. If you have the money you could pay a lawyer for an opinion, and as long as you don’t search out a kook you’ll get the right answer.
brygenon,
Perhaps you can cite Article/Section/Clause in the Constitution where the above is fact; just because Congress hasn’t been in the “interpretation business” for a while doesn’t mean that it cannot do so.
The last time I checked, the US Constitution called for separate but equal branches of government. Maybe you’re looking at a different Constitution than I am.
-Phil
Phil says:
The question was not whether they sometimes do but whether it is their job, or as Black Lion put it, whether they “need to” define the term in the Constitution. No, they have no such need. See Articles 1 and 3.
1 “The birthers would have to provide the court with legitimate evidence contrary to the COLB.” Black Lion
Obama’s paper COLB (if it exists) is easily bypassed in court applying Rules of Evidence 106, 301, 401, 1001, 1002, and 1003. For example, under Rule 301 an Obama COLB’s status as prima facie evidence is lost on the basis of the following:
The “presumption” attaching to prima facie evidence derives from the meaning of the verb “presume”: an assumption, supposition, or guess absent indications to the contrary; and going outside proper limits. (For example, the presumption of innocence goes outside the proper limit of reason in that some defendants will be guilty.) The “legitimate evidence” (Black Lion’s term) required under the Rules of Evidence to provide indications contrary to a “legal or artificial presumption” (that is, an assumption etc outside proper limits not based on probable reasoning) must be more than a surmise and provide some reasonable basis for differing logical conclusions about a vital fact. Here is that “legitimate” evidence:
1 The location of Ann Dunham and Obama Sr in the summer of 1961 are unknown.
2 The Dunham family deceived outsiders for decades about Ann Dunham residing in Washington within three weeks of the registered date of her son’s birth.
3 Ann Dunham lied in her 1964 divorce proceedings and legal documents about fulfilling the required period of residence in Hawaii.
4 The “Mother’s Address” entered into Obama Jr’s original birth record, as transmitted by newspaper announcements of his birth, is a lie.
5 The informant of Obama Jr’s birth as entered into his 1961 registration is unknown.
6 The type of record which originally registered Obama Jr’s birth is unknown.
Under Rule 301, it must be impossible to logically construct these facts in any other way than “Obama Jr was born in Hawaii on August 4, 1961″, otherwise the prima facie presumption of Jr’s COLB is rebutted. To attempt a rebuttal of the rebuttal of the COLB’s presumption the argument offered must be logical, coherent, specific, detailed, and incontrovertible, leaving no other construction of the facts possible, otherwise presumption still fails. As it is obvious that the above facts 1-6 cannot be manipulated into a unique conclusion (supporting Obama’s case) that allows no other conclusion, a court should dismiss the prima facie presumption propping up Obama’s COLB.
Under other Rules of Evidence the bypassing Obama’s paper COLB (if it exists) is even more simple and swift: the COLB is not a true duplicate of the original record (1001 and 1003), is not complete (106), and is not best evidence (1002). Any one of these rules when applied has the same effect.
2 “…according to the State of HI he could not receive his actual birth certificate..the health department indicated that this [long form] does not exist. It seems like there is only one form [the short form].” Black Lion
Black Lion should read the article more closely and carefully.
Okubu said: “The electronic record of the birth is what (the Health Department) now keeps on file in order to provide same-day certified copies at our help window for most requests.” Black Lion please note: “same-day” and “for most requests”; that is, not all requests. What less frequent requests receive longer-than-same-day handling? Long form certificates are still issued to applicants seeking homestead leases under the Department of Hawaiian Home Lands program. This booklet gives full information: http://tinyurl.com/DHHL-booklet (Quoting:) “When requesting a certified copy of your birth certificate from the Vital Records Section of DOH, let the clerk know you are requesting it “For DHHL Purposes,” and that you need a copy of the original Certificate of Live Birth and not the computer-generated Certification.” When applying by mail, into the “Reason for Requesting a Certified Copy” section in the application interested parties should enter “For DHHL purposes”. This section can also be used by genealogists and persons hoping to establish presidential eligibility: for example, by entering “For Genealogical Purposes” or “For Proof of Presidential Eligibility”.
When Okubu says: “The electronic record of the birth is what (the Health Department) now keeps on file…” she refers to procedures in place after October 2001. Pre-existing paper records are still held. If they weren’t a) the DHHL program would collapse, to the “dismay” of many Native Hawaiians and in contravention of federal law (Hawaiian Homes Commission Act, 1920); and b) Hawaii DoH officials who have publicly stated that Obama Jr’s 1961 birth record is on file would be easily proven liars: and they are not likely to be that stupid.
For Black Lion to state unequivocally that Obama Jr’s original 1961 birth record no longer exists in Hawaii Vital Records files is a claim that is demonstrably without foundation in fact.
brygenon,
As I’ve already mentioned, if you don’t believe in the “separate but equal” branches of the federal government, that doesn’t mean the concept doesn’t exist. Nevertheless, it is your prerogative to think as you will.
-Phil
Who are you kidding,
Thank you for your excellent legal analysis!
Who Are You Kidding:
Your first problem: Getting into court.
Your second problem: The civil standard is “the preponderance of evidence.” Lacking any evidence contradicting the COLB, its mere existence meets that standard and no “bypass” is legally warranted.
Note that the “legitimate” evidence you cite is either not evidence at all (i.e. your points 1, 5 &6), irrelevant to the COLB (your points 2 & 3) or almost certainly not true (your points 2, 3 & 4).
1 Your first problem: Getting into court. HistorianDude . Getting into court is not my problem.
2 HistorianDude has shimmied around Federal Rules of Evidence 106, 1001, 1002 and 1003. To reiterate: HistorianDude and Obama’s attorneys must demonstrate with substantial and discursive arguments that Obama’s COLB (if it exists) is a true duplicate AND is complete AND is best evidence in order to avoid recourse to the originating 1961 record (“bypassed”). Any ONE of these Rules of Evidence bypasses Obama’s COLB (if it exists). HistorianDude is welcome to represent in detail how he believes these Rules cannot apply to Obama’s COLB: the stark reality is that the Rules are unavoidable, they undermine (“bypass”) the COLB as sufficient evidence, and therefore any such attempt by HistorianDude is futile. However, every little helps refine the truth in some way.
3 “Your second problem: The civil standard is ‘the preponderance of evidence’.” HistorianDude’s comment suggests he is not fully informed about the law on presumptions. The standard to rebut a legal or artificial presumption is NOT “the preponderance of evidence”, as HistorianDude would like us to believe. The standard to rebut a presumption under the Federal Rules of Evidence is LESS THAN a preponderance of the evidence, which is to say the Thayer standard (as adopted by FRE), which is to say SOME evidence, which is to say evidence which is more than a surmise and provides some reasonable basis for differing logical conclusions about a vital fact. Normally I would give interminable cites, but one assumes HistorianDude is old enough to do his own research. This is what he has to rebut:
“Under the Thayer-Wigmore theory, the purpose of a presumption is to require a party against whom a presumption operates to come forward with ANY evidence of the nonexistence of the presumed fact. The production of this…evidence destroys the presumption — making it disappear like a ‘bursting bubble.’ …Rule 301 requires the opposing party to produce ANY evidence of the non-existence of the presumed fact to rebut the presumption.”
“The Thayer view is consistent with the language of Rule 301, which provides only that a presumption shifts ‘the burden of going forward with evidence to rebut or meet the presumption.’ Accordingly, we hold that a presumption under Rule 301 has no probative effect once rebutted.”
Hawaii courts take a similar line on rebuttable presumptions:
“The degree of proof necessary to support a finding of nonexistence should be, as McCormick suggests, more than a ‘scintilla,’ …To amount to more than a mere scintilla the evidence must be of a character sufficiently substantial, in view of all the circumstances of the case, to warrant the jury…in finding from it the fact, to establish which, the evidence was introduced… it should be ‘evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions’…”
Thayer’s charming disquisition “A Preliminary Treatise on Evidence at the Common Law” can be found at http://tinyurl.com/Thayer-Text
4 Federal Rules of Evidence 401 and 803-4 alone take care of most of HistorianDude’s objections to Points 1-6. a) Evidence is relevant when it has a tendency to make a consequential fact even the least bit more probable or less probable than it would be without the evidence. “Evidence having any probative value whatsoever can satisfy the definition. There is no requirement that the evidence make the existence of the fact to be proved more probable than not or that it provide a sufficient basis for sending the issue to the jury.” b) Family and personal history “among a person’s associates, or in the community, concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history…” is admissible evidence (perhaps Obama himself might contribute to this, though that isn’t strictly necessary).
HistorianDude’s objections to the facts (Dunham family deceit, Ann’s mendacity in her divorce proceedings and legal documents, and the fake “Mother’s Address”) are easily shown to be wrong.
Fact: In interviews, books etc over many years, not one member of the Dunham family (including Obama Jr) has ever disclosed that Ann Dunham and son were living in Washington within three weeks of the registration of his birth; this information only surfaced in mid-2008, is incontrovertibly proven (records, witnesses etc), and has still not been admitted by any member of the Dunham family or a representative; outsiders were led by the Dunhams to believe (and still are) that Ann, Obama Sr and their son lived together in Hawaii until Sr deserted his family to go study at Harvard in June 1962.
Fact: Ann Dunham’s 1964 divorce records contain a lie about her meeting the required period of residence to secure a Hawaii divorce. This is easily established with reference to the documents concerned and proof of residence in Washington until at least September 1962.
Fact: the “Mother’s Address” given in Obama Jr’s original birth record is, with near certainty, a falsehood and anyone can easily prove it for themselves. Draw up three columns headed “Actual Evidence”, “Evidence If-True”, and “Evidence If-False”. Into each respective column place:- any evidence we actually have connecting the Dunhams, their daughter Ann, or Obama Sr with the birth record’s “Mother’s Address” (6085 Kalanianaole Highway); the evidence we would have if the “Mother’s Address” were genuine; and the evidence we would have if the “Mother’s Address” were false. Compare and see which columns most agree. Given that the “Actual Evidence” and “Evidence If-False” columns most agree, this exercise establishes with near certainty the fact which HistorianDude finds it hard to accept: the address (6085 Kalanianaole Highway) is a another Dunham family deception.
[...] Service Registration — Released – Counterfeit – Document Locator Number update – another FOIA [...]
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[...] The Right Side of Life Website By Striker, on April 8th, 2011 var addthis_product = 'wpp-255'; var addthis_config = {"data_track_clickback":true,"ui_language":"en"};Morality101 got a good “mention” here. Interesting website. [...]