Natural Born Citizenship: Myths, Law of Nations; Update: Common Law Still Exists?

by Phil on 08/26/2009

Prolific blogger and attorney Leo Donofrio has posted yet another fascinating opinion regarding not only natural born citizenship myths — you know, those things that we tend to presume when getting into a great debate either on this blog or other sites — but also the “law of nations” as referred in the Constitution:

Rarely, when conducting legal research does one find a historical document that is directly on point.  But even more rare is to find a document which is directly on point multiple times.  But that’s exactly what has happened this week.  A historical document which destroys every bogus point being made by Obama POTUS eligibility supporters was recently discovered by a cracker jack team of university students from UCONN.  They call themselves UNDEAD REVOLUTION.

They have been sending me good stuff for quite a while now.  A wonderful contributor to comments at this blog – Kamira – is part of that team.  This group is preparing the mother of all natural born citizen research reports based upon their unique historical document discoveries.  It will be guest blogged by them right here when it’s ready for public consumption.

But for now, and as a lead in to their work, I offer you one of their superb historical finds.  It’s an article from The American Law Reviewdated Sept./Oct. 1884.  The American Law Review was a premier legal journal -  the brain child of Supreme Court Justice Oliver Wendel Holmes.

This was not a law school publication.  It was considered to be the state of legal art which utilized the most esteemed attorneys of the period.

The article I am about to show you was published in The American Law Review, written by George D. Collins, Esq.  Attorney Collins was the Secretary of the California Bar Association.  His name was recognized nationally for cases in the federal courts and moreso due to his regular publishing of articles via The American Law review.

The article I am excited to bring you is titled:

ARE PERSONS BORN IN THE UNITED STATES IPSO FACTO CITIZENS THEREOF?

The article provides historical opposition for every single point raised by Obama eligibility pundits and destroys all propaganda in its path.

The article is written in a clear and concise manner, easily understood by lawyers and lay persons alike.  I will now introduce each relevant issue confronted in this article and then present the article in full for your review.

OBAMA POTUS ELIGIBILITY MYTHS DESTROYED BY MR. GEORGE COLLINS

MYTH #1: Chester Arthur’s British birth was known and accepted by the American people.

This article was written in Summer 1884, while Chester Arthur was stillPresident.  Since The American Law Review was such an esteemed legal publication, old Chester must have been somewhat intimidated by the report of Mr. Collins.  This is because the article makes perfectly clear that to be a natural born citizen one must have been born to a US citizen father.

Chester’s father William was not naturalized until 1843, 14 years after Chester was born.  This meant that Chester Arthur was a British subject at birth and was therefore not eligible to be President as was first reported at this blog back in December 2008.

It has been argued that Chester Arthur’s occupation of the White House set a legal precedent for Obama since both Chester and Barack were born of British fathers.  But the public – at the time Chester was running for VP and later when he became POTUS – never knew that Chester Arthur was a British subject since he successfully lied to the public about his parental heritage.

The law review article goes into great detail concerning the issue of who exactly rises to the level of natural born citizen.  It discusses law cases and legal precedent in its analysis, but it does not even mention the current President – Chester Arthur – even though Attorney Collins steadfastly denies that a person born on US soil to an alien father could be a natural born citizen.

If Attorney Collins – esteemed lawyer, Secretary of the Bar Association and nationally known legal journalist – had thought his current President at the time this article was published – Chester Arthur – was a British subject at birth, then the article would have required a discussion of that point.

But the article does not mention President Chester Arthur because Chester Arthur managed – through blatant deceit - to cover that issue up.  He successfully concealed his British birth from the American people.  This law review article is proof of that conclusion.

MYTH #2: Lynch v. Clark ( a New York State case, not federal) is legal precedent for Obama to be considered a natural born citizen.

Despite the fact that state court cases have absolutely no legal weight of authority in federal court, Obama eligibility supporters cite this case often.  Attorney Collins tears the decision to shreds and exposes its faulty conclusions.

MYTH #3: Common law states that being born on the soil – Jus Soli – makes one a “natural born subject” and therefore every person born on US soil is a “natural born citizen”.

Attorney Collins takes this on directly and establishes clearly that there is no common law in the United States.  He also explains that natural born citizens are in no way, shape or form, the same as natural born subjects.

MYTH #4: Vattell’s definition of a natural born citizen was not considered by the framers.

Attorney Collins discusses Vattell in great detail.  And Collins agrees that to be a natural born citizen one must be born on the soil of parents who were themselves citizens.  Collins quotes Vattell.

But more important is the fact that Collins makes it clear Vattell’s definition of “natural born citizen” was not actually Vattell’s definition.

This is very important.

The definition of “natural born citizen” was not created by Vattell in his treatise, “Law of Nations.”  That treatise simply discussed the established body of law known as “the law of nations”.  The definition of natural born citizen discussed in Vattell’s treatise was actually the definition established by the body of law known as “law of nations”.

Attorney Collins makes all of this quite clear in the article below.  Now please review Article 1, Section 8 of the US Constitution:

The Congress shall have power…To define and punish piracies and felonies committed on the high seas, and offenses against the Law of Nations;

The capital letters are not in reference to Vattell’s treatise, but theyare in reference to the body of law Vattell wrote about – the actual “law of nations”.  And that body of law –  according to Attorney Collins as well as Vattell – held that a “natural born citizen” was somebody with connections to the nation for having been born on the soil as well as having been born of citizen parents.  In Article 1, Section 8, we therefore have a direct recognition that the framers respected the law of nations.

DOUBLE ALLEGIANCE TO THE NATION

This is what the framers required for the Commander In Chief.  Any child of immigrants from any nation could become President – as long as his parents became naturalized US citizens before that child was born on US soil.  In their wisdom, the framers sought two generations of US citizenship.  This discriminates against no race at all.

To be an American has nothing to do with race.  It has to do with being a person cloaked in liberty – free from monarchy, free of repression, free forever.

The natural born citizen clause does not establish a superior form of citizenship.  It does establish a national security safeguard against foreign invasion of the White House and takeover of the US Armed Forces.

It makes all the sense in the world that the person who holds the keys to the massive nuclear arsenal in our possession should be born on US soil to parents who were citizens.

If we allow persons born in the US of alien fathers to be President of the US then Kim Jong Il, Osama Bin Laden and Mahmoud Ahmadinejad are all eligible to have their direct offspring become President of the United States and Commander In Chief of our Armed Forces.

That is what you are saying if you think Obama is eligible to be President.

You can’t discriminate based on race or nationality in this country.  If a person whose father was not a US citizen at the time of his birth can become President, then it doesn’t matter what nation that person is a dual citizen of.

This is the main issue and main reason why I have dedicated so much of my time to this situation.  I am no more worried about Obama than I was about Bush or Clinton.  I see all of them as having struck horrific blows against US sovereignty.  But I am seriously worried about who comes next.  Who is being groomed as a Manchurian candidate as we speak? [emphases original]

Here is the George D. Collins article:

Are Persons Born Within the United States Ipso Facto Citizens Thereof – George D. Collins

All of the above is definitely worth a read. I don’t think that anyone can disagree with the notion of bringing more evidence to either substantiate or refute the fundamentals of the eligibility issue is a bad thing. And while I haven’t always personally commented in response to some in the opposition tha have brought up many of the above arguments, I think that it’s about time to seriously take the eligibility issue seriously.

Of course, the natural question is, “Why?”

Is it not abundantly clear that one risks employing a complete and total alien (of the terrestrial kind!) to the presidency if one does not explicitly enforce the presidential eligibility clause? Why is it considered by some to be such a bad thing to ask about such an ambitious individual’s background?

I have said a long time ago on this site that the issue is not so much Mr. Obama, per se, regarding eligibility; he’s merely the catalyst that got the research started. Rather, it is the constitutional aspect of the question that continues to intrigue me. What’s more, the fact that this clause in the Constitution hasn’t been more explored is bizarrely appalling to me; just because there is next to no actual case law specifically referring to constitutional presidential eligibility doesn’t mean it shouldn’t be pursued.

I think it’s been shown quite clearly as of late that the opposition to discovering more about the eligibility clause (does there really have to be an opposition to further studying out the Constitution? Frankly, that sounds quite crazy to me as I type it!) operates under their own standards of what’s acceptable.

Unfortunately, those standards are biased under the auspices that to question the eligibility clause is to fundamentally question who Mr. Obama is in terms of what he brings to the political table. As such, I’m sure that many opposition commenters would turn the question around and ask, thusly:

What if the President were an individual who pushed for the federal government to be constrained by the enumerated powers as defined in the Constitution, yet who is constitutionally ineligible for the presidency? Would you “birthers” be pushing just as hard to remove such a person?

My answer is a resounding “yes.” Though I would readily admit I would hate for such a scenario to occur, it doesn’t matter to what party the individual belongs — they are either eligible or they are not.

As a final thought on the above, I can only imagine that very few individuals in the press (e.g.: outside of the blogosphere) have even contemplated any of the above. Therefore, be better than them — read, contemplate and then comment. It certainly won’t hurt the situation!

Update: Criminal investigator Paul Andrew Mitchell responded to Mr. Donofrio’s posting thusly:

The “common law” is mentioned TWICE in the Seventh Amendment:

http://www.supremelaw.org/ref/whuscons/whuscons.htm#7th-amend

Moreover, the Seventh Amendment is the supreme Law of the Land
throughout the 50 States and D.C. and all Federal Territories, chiefly because
Congress expressly extended the Constitution into D.C. in 1871
and all Federal Territories in 1873.

And, 42 U.S.C. 1988 permits a State’s common law to decide a court case
if there is no adequate Federal remedy:

http://www4.law.cornell.edu/uscode/42/1988.html

“… but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.”

Also, 28 U.S.C. 1652 authorizes importation of State laws into Federal court cases, as rules of decision:
the common law is the rule of decision in all California courts, for example:  CCC 22.2:

http://www4.law.cornell.edu/uscode/28/1652.html

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=00001-01000&file=22-22.2

22.2. The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.


Also, see UCC 1-103:

http://www.law.cornell.edu/ucc/1/article1.htm#s1-103(b)
concerning supplemental principles of law:

(b) Unless displaced by the particular provisions of [the Uniform Commercial Code],
the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions.

Accordingly, it is NOT correct to say that “there is no common law in the United States”
EVEN IF “United States” is limited to the federal zone and/or to the Federal government.

(Emphases original)

See the following links regarding the eligibility saga:

-Phil

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There are 129 comments in this article:

  1. 08/25/2009NewEnglandPatriot says:

    UCONN??????? Liberal UCONN??? It’s 20 minutes up the road from me and full of leftist thought!!! I guess it doesn’t matter, though…good researchers these people certainly are!!

  2. 08/26/2009elspeth says:

    Phil,

    Thank you for covering the recent post by Leo Donofrio. I found it worth reading and look forward to the further detail he has promised on the information provided to him by DEAD REVOLUTION, the “mother” report.

    I agree with you about it seriously being time to address the eligibility issue.

    It has really bothered me that no one who can has had the guts to address this issue for the birthers, but it occurred to me that there isn’t anyone with the guts to settle it for the obots, either.

    As always, appreciate your posting.

    elspeth

    oh yeah, full disclosure

  3. 08/26/2009James says:

    The precedent myth on Arthur refers to the mainstream media’s claiming Arthur was defamed,and now it is happening again with Obama.Leo is still wrong about a precedent being set by Arthur.He’s hung up on the qualifier of “legal”[legal precedent] on that word which in that sense is true.But bottom line” An “historical and dangerous precedent” was set by Arthur regardless of it being known by the public,and we are seeing the worst case scenario and end result of usurpation by a non-nbc POTUS with Barry Soetoro.And it is different only in that his lies are being corrected in real-time.Outside that,there is no difference.Given the fact that there is no investigative journalism in the MSM,and they are merely propaganda outlets that have tanked for Barry,most of the nation and the world is in the dark on this nbc issue to this day.I though Leo damged his own research on Arthur with the artcile called “The Dangerous Precedent Set By Obama Being President”.That error will be further grist for the rumor mill of those that seek to destroy the constitution.In fact,the current artcile above that purports to destroy that particular myth,which it does,is offset by that other artcile as well as Leo’s stance on precedence.The bulk of average citizens will not see the difference between a legal precedent and an historical precedent.And the two are mutually exclusive.To say that one is not concerned about Obama anymore than past presidents,and looking into an uncertain future of a possible usurper in the mold of an Asian dictator or Arab terrorist is being out of touch with reality.Yes,several past presidents paved the way for Barry,but now we are dealing with the present state of affairs.We are seeing a fascist takeover of the nation by Soetoro/Obama.Of course,from the comments section it is clear that many people in the blogosphere are cognizant of this taking place,the message is somewhat contradictory when you place the original research on Arthur in juxtaposition with the current commentary on precedent and that article earlier this month.None of this is going anywhere.The Global Elitists have the NWO in place,and this nation is toast.That’s why Barry was chosen.All this focus on an issue that can’t be resolved by an unwilling government at all levels and branches using a mystery man… a United Nations baby,as it were,as a misdirection with a dialectical shell game of Hawaii and Kenya[and Canada and Indonesia for good measure] for the masses to focus on,while the nation is destroyed.The BC is a distraction.But then the NBC issue,as valid as it is,was also a part of the plan.Barry didn’t get into the Oval Office with a few rag tag Marxists form ACORN.Nor are all the conspirators fawning at his feet die hard Marxists.But they are globalists.They despise national sovreignty.The final nails in the coffin for the USA was the APA Act of 1946 and later having the communist U.N. put on our soil.

  4. 08/26/2009James says:

    I do find this research valuable for the historical record.I’m just pointing out that we are up against a cabal that is finishing their “Great Work” that was started before this nation drafted the Constitution.So,with political correctness and unity- in -diversity and marxist multiculturalism firmly entrenched in the West,to battle against Barry gets one roundly condemned as a racist,and nationalist right-wing extremist, and if a Chrsitian, then a bigot as well.And memorizing Rules for Radicals and trying to use those tactics on the enemy,which many people have been doing for the past year is an exercise in futility.,Not to mention that two wrongs do not make a right.Besides,beyonf the street level of the voting populace,there is only one party,There is no discernable ddifference between the two political parties beyond the rhetoric.And it is too late to do anything about it other than educate people with true history,the opposite of what you read from a certain commenter here,and in the textbooks.And Leo knows this as well.I just take issue with the distorting of the meaing of the word precedence and what has transpired with the two usurpers in our history.It doesn’t matter if the public knew about it at the time.Arthur lied..period.Barry is lying…period.Both are usurpers.One was not revealed as such while living.The other is as we speak.Neither will be in the history books as impeached or removed via QW usurpers.So,the historical dangerous precedent was indeed set by Arthur and is seeing its’ fulfillment in Barry Soetoro aka Obama.It is delusional to think he has come this far and all of a sudden a perfect lawsuit will turn the traitors into patriots and remove him.We have over 20-30 million illegal aliens in this nation,and they are given preferential treatment.You think Barry is any different?No,that illegal is in there until chaos ensues and martial law takes place. Polls dropping means war or a false flag event is on the horizon.Then the poll ratings jump to 90% approval.

  5. 08/26/2009MGB says:

    Phil, I second your “resounding yes.” The Constitution is what binds us together as a people within this Republic. Without the Constitution, we are not a people, much less a Republic. If we do not hold to the Constitution, then the contract is broken.

    After reading the Collins article, I had these thoughts:

    Collins wrote, “An American citizen, a title which it was the aim of our ancestors to make as proud as that of king.” Gee, I wish I’d said that!

    “To be or not to be” (legitimate, that is)! See the top of page 3. What a conundrum. Huh?

    I’m not a lawyer, but I can read. Page 7 is particularly interesting, with regard to the 14th amendment and the Civil Rights Bill. According to this author, if what Obama claims about his parentage is true, then he wasn’t a citizen of the U.S. under the 14th amendment (as interpreted by the language of the Civil Rights Bill) because at birth he was NOT “subject to the jurisdiction” of the U.S.A. and WAS “subject to” a “foreign power” (Britain), which he admitted to on his own Fight the Smears website.

    At birth, he was “governed” by British law, as he stated on his website, and this is true regardless of whether he was born in Hawaii or elsewhere.

  6. 08/26/2009David says:

    I wish I would have had this resource when I wrote my essay on citizenship. Although, I did write about many of the same things as Mr. Collins did. My essay was much longer and much more in depth…but ultimately reached the same conclusion.

    There’s lots of good information on citizenship in this essay. Here’s the link again if anyone missed it:

    http://rationalliberty.com/index.php/2009/03/13/thoughts-on-united-states-citizenship/

    It’s long, but worth it.

  7. 08/26/2009James says:

    And yes,I’m aware that the nbc issue has nothing to do with whether Barry is a legal or illegal citizen.I’m just saying that if you look at what is being allowed with illegal aliens,it is clear that the controllers are not concerned with a non-nbc as POTUS.Having said that,the little that is known about Barry,he is likely a dual or triple national.He has used multiple aliases and has perjured himself by denying that fact on government documents.What is not known is if the man ever swore allegience to this nation.Nor is it even known who his parents are,or his actual year of birth.So,without getting into those angles because Leo wants to work off off the public record alone,it limits the scope of investigation and reporting accurately.Which is problem for all of us.How can a case be made against the information from a apthological liar aided and abetted by an entire government and complicit media?? It can’t be done outside of a hypothetical scenario of a Quo Warranto case.Or the numerous lawsuits packing in all the specualtion and conjecture which the courts refuse to hear on the merits.And when you look at Berg and Taitz objectively,there cases should be dismissed.You have to go beyond the emotional level and really look at what those two have been doing.I applaud the PHN Petition.I disagree that the civil QW case is the only proper way to address this crisis.If we are going down we might as well file a criminal case and lay the facts on the table as they did.Look at the military criminal complaints.They made this eligbility issue moot.The sitting president has been foramlly accused of fraud and treason and nothing has been done about it in over four months.That should arrest our attention.That should bring this all into focus and perspective.No arrests over those criminal complaints and we are to believe the nbc issue will be resolved?Not happening folks.Of course,this is not to disparage Leo.He is fully aware of this never being heard in the courts.

  8. 08/26/2009James says:

    And no,the inauguration does not count.He flubbed it.The second one was done in private and the public was not shown a video or given an audio of it.We don’t know what type of bible he sore on.What constiution he swore to uphold.Or if he did do it at all.A blind trust in the government and media is what put us in this situation.And what name did he use as a senator?We know he dropped the Hussein in 2007 and picked it back up in 2009.We know he has had many other names and lied on his selective service application.We don’t know if he ever became a citizen here outside of it being conferred upon him by his mother if she were able to,and with the age and now the 52 yr age flap..we don’t know.So,best thing is to prepare for martial law because it is coming.The only possible case to be heard would be with Orly,as she has been set-up for this to receive a phony but accepted as real BC.

  9. 08/26/2009Aristotle the Hun says:

    Boy, you have really been hitting some home runs lately!

    Have you seen the email I am sending to the nations Sheriffs?

    To all Sheriffs – Disclosure of Vital Statistics Records to Law Enforcement officers – Hawaiian Law

    Quick and to the point; according to Hawaiian law sb1326 any Law Enforcement Officer in the United States can access the vital statistics of the Hawaiian Government. Many people are very frustrated about Obama’s many secrets. As far as I know no one has attempted to obtain the birth records as part of an ongoing criminal investigation of election fraud. I think this should at least be attempted.

    How to obtain a copy of Obama’s original long-form birth certificate.

    Full text of legislation at the link below
    http://www.capitol.hawaii.gov/session2007/bills/sb1326_sd1_.pdf

  10. 08/26/2009Civis Naturaliter Natus says:

    Phil,

    Let’s not forget that it was a close political operative of the late Senator Kennedy who confessed recognizing that to suborn the USA to a foreign power in the most effective and clever manner, would be to use an American citizen with foreign ties…

    Yes, it was Barney Franks who spilled the beans in a House Committee meeting in the year 2000…which discussed changing the NBC clause in the Constitution…

    http://commdocs.house.gov/committees/judiciary/hju67306.000/hju67306_0.HTM#0

    During this hearing Franks (D-Massachusetts) said:

    “The problem I have with that Manchurian Candidate scenario of yours is that precisely the Manchurian Candidate was an American. The fact was that if we have this really omniscient foreign power—and I think I should say that in our entire history we have apparently had no examples of an elected official being planted from overseas, we have had no examples of a foreign country doing that, because as you have said, we have the House and the Senate, we have the Supreme Court, and there are other important positions. And I am not aware that anybody has ever succeeded in planting that mole here and have him or her grow into prominence and then be an elected official.

    But if you were going to do that, there would be no need to do it with one of your own nationals. As a matter of fact, it would be far cleverer to pick an American. There are Americans of a wide range of loyalties and ideologies. In fact, many of the most prominent spies have been native-born Americans.”

    ———-

    Or even more clever, Barney, to choose a dual citizen…one with KGB boyhood friends, Muslim family, Indonesian ties, and British/Kenyan citizenship/roots…

    No wonder then that 4 years later we have Kennedy pushing Barry to the Podium at the DNC…as the up & comming Dem hopeful…

  11. 08/26/2009dancin rick says:

    Thanks for posting that, Phil.

    People will continue to argue about eligibility. But what this article makes crystal clear – and beyond debate – since it was published while Chester Arthur was still President, is that the public clearly was not aware that Chester Arthur was born British to an alien father. Since the law review article discusses the citizenship ramifications of such an individual’s birth, had the author known the President at the time was so born, he would have discussed that in the article. But he didn’t.

    Until December 2008, the public was not really made aware of Chester Arthur’s British birth.

    Obama is the first US President (after the grandfather clause expired) to have been openly born as a citizen of another nation.

    This is as crucial an issue as we shall ever see pertaining to the future of national security.

  12. 08/26/2009Pete says:

    Phil,
    Thanks for reprinting Leo’s recent blog and research here. The above cited legal precedence for excluding natural born citizen as it applies to POTUS, from the 14th amendment. Beyond this are the words in the congressional record of the author of the 14th amendment, who stated that the 14th amendment did not change those special qualifications for POTUS. Once again, as common sense would dictate, the concept behind ‘Natural Born’ requirement for POTUS was about avoiding ‘entanglements’ of future any future POTUS. Obama is self defined ‘entangled’, and thus was, and is, ineligible.

    One update that I found helpful was the recent CIA probe of criminal activity under the Bush administration. No more pardons for POTUS and minions, no more Clinton pardons, Nixon pardons, and yes you betcha: NO OBAMA PARDONS. DNC members/cabinet members not paying taxes, POTUS illegally firing inspectors, POTUS illegally firing CEO’s, POTUS (or spouse) illegally accepting or diverting campaign funds, POTUS using ‘private’ organizations like ACORN to generate funds and lists, having Whitehouse use public funds to advertise Whitehouse bills,…..well…I’m getting tired of listing them but I’m sure everyone gets the point.

    Strange thing is, the DNC and the OBOTS must understand the above. You have to wonder if they plan on leaving peacefully at the end of their time, or if they will try to ‘organize’ around a socialist theme and wrench power from the citizens. The will likely need their own ‘paramilitary’ loyal to only Obama to pull off the later.

  13. 08/26/2009AnotherReader says:

    As more evidence arises to support the Natural Born Citizen clause, the opposition will just direct their comments and arguments in other directions.

    Eventually, the merits of his actual Natural Born Citizenship status will be heard in a Federal Court. It’s only a matter of time. Tick, Tock. Tick, Tock.

  14. 08/26/2009HistorianDude says:

    So… who is willing to bet that Leo is being punk’d by that “cracker jack team of university students from UCONN?” I pose the question not because I think the article is fake, I don’t. I do so because the story behind the article is hilarious.

    George D. Collins appears to have been a 19th Century Charles E. Lincoln : a failed attorney and convicted felon who ended up working in the jute mill of San Quentin Prison. His case was so notorious at the time that it ended up being recounted in a volume called Celebrated criminal cases of America.

    http://books.google.com/books?id=pkQ37-_VMpQC&pg=PA161&lpg=PA161&dq=george+d+collins+san+francisco&source=bl&ots=yaVJtVturJ&sig=7GxC8z1EjLT3H850iwFLIOywgD8&hl=en&ei=A5uUStvaDdLOlAexsJWkDA&sa=X&oi=book_result&ct=result&resnum=1#v=onepage&q=george%20d%20collins%20san%20francisco&f=false

    This was however not until after ending up on the losing side of Wong Kim Ark, the Supreme Court Decision that pretty much destroys every argument he makes in this article.

    Let me be excruciatingly clear on this point… it’s not that just his arguments wound up on the losing side, he personally did too. He personally wrote the brief for the Appellants in Wong Kim Ark. You can read it here:

    http://holmes.uchastings.edu/library/topical-and-course-research-guides/wkadisplay/AppellantsBrief.pdf

    The Supreme Court actually had Collins’ arguments before them when they decided Wong Kim Ark, rejecting his arguments in a 6-2 decision.

    So… how did this guy end up being published in The American Law Review? Well, that’s actually easy. The AML was not a peer-review publication, or a publication associated with a law school — anyone could publish an article it. As such, the article is no more than a opinion piece by a lawyer who did not like the 14th Amendment. Why didn’t he like it? The best guess is a palpable racism against the Chinese who were present in large numbers in San Francisco at the time. The article is itself irremediably racist.

    (Aside to Sharon 2: See? I am not loath to call someone racist when they show that they are racist in their own words. But I do not assign labels arbitrarily.)

    All in all… the article will prove a deep embarrassment to Leo, given that it associates Birther arguments with yet another in a long list of failed lawyers, now stretching back more than a century.

    Birds of a feather, as they say.

  15. 08/26/2009Black Lion says:

    George Collins’ article is very similar to the dissent in the Wong Kim case. That is because he was involved in appealing the case to the Court. So his theories were evaluated by the SCOTUS and rejected by the Court in a 6-2 decision.

    http://holmes.uchastings.edu/library/topical-and-course-research-guides/wkadisplay/AppellantsBrief.pdf

    In reading the Collins article he even conceeds that the Vattel definition of what Natural Born is would be inconsistent with common law. In other words Common law would find against the Vattel definition. Also he concludes that the common law understanding of natural born citizenship is that it descends regardless of the citizenship of the parents. So in other words the court has already evaluated Mr. Collins opinion on what a NBC is and decided against it in the Wong case.

    Specifically in Wong case the Court says….

    “It would seem as if the right of citizenship was for each country to determine for itself, and that any nation would guard with jealous interest the right to decide who should be its members. That is to say, it is a matter of local and national law, as distinguished from international law, and the United States would be the last to surrender the privilege of determining, by its own law, who were or were not its citizens.

    [I]t seems somewhat remarkable that the Solicitor-General should take the position that the Government of the United States is to be administered, not in accordance with the laws of the United States, but in accordance with the law of nations, and that the vital question of who compose the great body of their citizens is to be determined, not by the law of the United States, but by the rules of international law.”

    http://holmes.uchastings.edu/library/topical-and-course-research-guides/wkadisplay/Brief.for.the.Appelle.pdf

    This seems to state that we should look to common law (Blackstone) and not international law to decide citizenship.

  16. 08/26/2009Black Lion says:

    Additionally as an aside the Wong Kim Ark decision has been cited approvingly by some of our current Supreme Court justices….

    “At least five of the nine justices currently on the Supreme Court cited Wong Kim Ark approvingly in Miller v. Albright. A case about whether the illegitimate child of a Filipino mother and an American soldier (born abroad) should have to jump through more hoops to affirm her American citizenship than if she were born to an American mother and Filipino father.

    Stevens, the majority opinion, “There are ‘two sources of citizenship, and two only: birth and naturalization.’ United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898).”

    Scalia and Thomas in concurrence: “The Constitution ‘contemplates two sources of citizenship, and two only: birth and naturalization.’ United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Under the Fourteenth Amendment, ‘[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.’ Ibid.”

    Breyer and Ginsburg in Dissent: “I recognize that, ever since the Civil War, the transmission of American citizenship from parent to child, jus sanguinis, has played a role secondary to that of the transmission of citizenship by birthplace, jus soli. See Rogers v. Bellei, 401 U.S., at 828; see also Weedin v. Chin Bow, 274 U.S. 657, 669—671 (1927) (citing United States v. Wong Kim Ark, 169 U.S. 649, 674 (1898), and id., at 714 (Fuller, C. J., dissenting)).”

    Sotomayor quoted Wong in a dissenting opinion from a 2nd Circuit opinion that suggested that because Bermudans were not “subjects” or “citizens” of the UK, they were not covered in the alienage jurisdiction of federal courts. Sotomayor wrote that this gave foreign jurisdictions the power to trump our laws in a way that was unacceptable.

    Her view was upheld by a unanimous Supreme Court in 2002 in JPMorgan Chase v. Traffic Stream (in another case that cited Wong Kim Ark) which brings Kennedy into the group of justices that have endorsed Wong.

    Alito and Roberts haven’t been involved in decisions citing WKA, but Alito’s Third Circuit decided a similar case to the one decided by Sotomayor and decided it the way the Supreme Court ultimately did. (Southern Cross v. Wah Kwong)”

    According to the curretn Supreme Court,there are only 2 types of citizenship, through birth or natrualization. So with a majority of the justices seeing the Wong Kim Ark decision as the one that decided what a natural born citizen is, I serious doubt that they would ignore the finding in that case to take up Mr. Donofrio’s point that we should look past that decision in determining what a NBC is.

  17. 08/26/2009Benaiah says:

    For Sale: Kennedy Senate Seat

    Send bids to starandcrescentflag@whitehouse.gov

  18. 08/26/2009Benaiah says:

    College kids recruited to join Obahmadinejihad’s ‘army’
    Earn credit for pushing ‘change,’ working on Usurper’s ‘agenda’

    http://www.wnd.com/index.php?fa=PAGE.view&pageId=107357

    Obahmadinejihad’s “Civilian National Security Force”…

    “We cannot continue to rely on our military in order [to silence the American infidels who oppose allah and my benevolent administration and] to achieve the national security objectives [submission to Islam] we’ve set. We’ve got to have a civilian national security force that’s just as powerful, just as strong, just as well-funded [as the Iranian Revolutionary Guard].”

  19. 08/26/2009Benaiah says:

    StarAndCrescentFlag@whitehouse.gov is no longer accepting bids for the ChappaquiddiKennedy Senate Seat, as the Governor of Massachusetts has accepted Obahmadinejihad’s offer to play…

    “Massachusetts Gov. Deval Patrick said Wednesday he would support changing state law to allow him to appoint an interim successor to Sen. Edward Kennedy’s seat…

    http://www.breitbart.com/article.php?id=D9AAM41G1&show_article=1

  20. 08/26/2009MGB says:

    earl, for your edification:

    http://cyber.law.harvard.edu/property00/domain/legislation.html

    This would be the law addressing people who create bogus websites, using someone else’s identity.

  21. 08/26/2009Lawyer from Missouri says:

    Leo and other legal scholars are really debating and discussing this issue so that THE SLEEPING GIANT (aka American people) will be informed just like Beck is doing to ask reasonable questions.

    You know what is ironic is that after FDR sat as a dictator for 12 years before his death, it took the american people through the amendment process to limit the terms of sitting presidents to only 2 terms.

    Fitting is it that the Constitution truly is a living document that is of the people and by the people not just SEIU, ACORN, etc…

  22. 08/26/2009HLC says:

    Phil,

    Thanks to Leo and his researchers. A great historical
    perspective of the issue. As to your situation below and question,
    I would also have to state a resounding Yes.

    What if the President were an individual who pushed for the federal government to be constrained by the enumerated powers as defined in the Constitution, yet who is constitutionally ineligible for the presidency? Would you “birthers” be pushing just as hard to remove such a person?

    This issue is what has drawn me to this controversy initially,i.e. the constitutional issue, but unlike you, I have a real abhorrence of
    people elected to the public trust that intentionally manipulate and abuse that trust, as I feel has been the case here. I know you may need to remain neutral on the personal issue involved here,
    but I do not. I seem to remember that someone in Obama’s Chicago
    law firm did research and wrote a paper on this issue at least two years before Obama became a candidate. To me, this means that even
    if he saw it was not a clear issue, that to be honest and ethical,
    traits we as a public require in a leader, he should have broached the issue publicly in order for Congress or the Supreme court to make a clarification, instead of his actual actions of blocking and evading, and using the birth certificate issue as a smokescreen and distraction. This to me violates the public trust. Therefore making his actions,to me, premeditated and criminal in intent, therefore
    despicable. I don’t know when or how this will resolve, but I will
    never accept this person as my president.

    Another issue which I would like your opinion on. In light of what I just read above, if we do not follow common law, and have never
    constitutionally adopted it, then would not all these so-called
    “anchor babies” born to foreign & illegal women here, not be foreigners as well, and not citizens as we call them now? This
    to me is one of the huge issues that this stirs up.
    Thanks for what you do. I appreciate your integrity in the way
    you have conducted this site, as I would hope others would as well
    HLC

  23. 08/26/2009glacialhills says:

    When there is a concerted effort to deride and condemn anyone with an opposite view, when there is a major monetary and physical effort put forth to keep any past records from being examined, when just doing constitutional research on the issue brings opposition and condemnation,

    I believe any intellectually honest person would have to conclude that there is something more going on than a few racist, right wing nut mobs out there spewing sour grapes.

    It’s coming down soon,its not going to be a gradual thing, its going to happen overnight…. be prepared, it’s gonna be ugly.

  24. 08/26/2009HistorianDude says:

    Oh… and in one final delicious irony, if Collins is right, then there is a very good chance that neither Leo Donofrio nor Mario Apuzzo (or me or Qwertyman) are American citizens, along with most of the descendants of late 19th and early 20th century immigrants.

    Immigrants families tended to start having children right away, while naturalization did not occur for the immigrants until on overage 15 to 20 years after arrival… i.e. after most of the kids were born.

    If Collins is right, then those children (and their descendants) are still not citizens at all. And in all probability… this includes Leo and Mario.

    You can’t make this stuff up.

    :D

  25. 08/26/2009JeffM says:

    Leo says that de Vattel didn’t define de Vattel. What was that again?

    Leo is wrong on Myth #4. De Vattel solidified the law of Nations, therefore writing the statutes for them. Therefore his definition is one in the same. Yes, de Vattel’s statute defines Natural Born Citizen and also defines statute for the Law of Nations specified in the U.S. Constitution. Leo’s interpretation merely confuses the issue.

    Stick with de Vattel’s Law of Nations statute and all the Constitutional stars line up perfectly.

  26. 08/26/2009Benaiah says:

    Death Without Dignity…

    Ted Kennedy was never “ENTITLED” to receive an Advance Care Planning Consultation…

    Comrade Nancy will live with this for the rest of her life…

  27. 08/26/2009brygenon says:

    Donofrio, from the article:

    Rarely, when conducting legal research does one find a historical document that is directly on point.

    And somewhat rarely does one find a historical document so directly and authoritatively repudiated in court as this one was by United States v. Wong Kim Ark. The two-justice dissent echoed the article, complete with its outright racism, but the 6-justice opinion and ruling of the Court utterly discredited this shameful attempt to turn back the advance of the 14’th Amendment.

    United States v. Wong Kim Ark was decided 110 years before the election of President Obama. Where has this Donofrio guy been?

  28. 08/26/2009Phil says:

    HLC,

    Another issue which I would like your opinion on. In light of what I just read above, if we do not follow common law, and have never
    constitutionally adopted it, then would not all these so-called
    “anchor babies” born to foreign & illegal women here, not be foreigners as well, and not citizens as we call them now? This
    to me is one of the huge issues that this stirs up.
    Thanks for what you do. I appreciate your integrity in the way
    you have conducted this site, as I would hope others would as well
    HLC

    I’m about to update this posting with a contrary opinion from another individual who makes a good case for why common law is still in effect..

    -Phil

  29. 08/26/2009HistorianDude says:

    Phil:

    Paul Andrew Mitchel quotes the Californian “reception statute” that formally recognizes the common law of England as “the rule of decision” in California courts.

    22.2. The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.

    That same statute, often worded almost identically can be found in the Revised Codes of every State in the Union except for Louisiana.

    Louisiana’s French heritage resulted in a preference to Napoleonic / Roman Law over English Common Law, accounting for their position as an outlier.

  30. 08/26/2009GeorgetownJD says:

    Donofrio, meet Shepardizing. As in, how about Shepardizing the Wong case.

    Legal Research and Writing 101.

  31. 08/26/2009MK says:

    What could be very disconcerting to all of the energy, efforts, research, argumentation, and the differing sides all convinced of their own outlooks in this NBC question is the fact that no one has any authentic proof that the man claimed to be the biological father of Mr. Obama (jr.) is actually who the dysfuntionals involved say he is. Jr. has absolutely no characteristics that outwardly appear to match (as do the other genetically claimed off spring of the man) – other than a contribution to the black portion of his identity. And the historical picture that is seen is one with no relationship established between these two “parents” who also claim an unidentified marriage without any period of established living or sharing together. This may never be established since all evidence has been destroyed.

    So, again, everyone has been convinced of something that has, as yet, to be conclusively examined and which is necessary to tie up all of the confusing and missing history of this mother and all of the other possibilities that could just as well be the true story.

    And Leo refers to this very basic underlying question as “gossip” to say that Obama is illegitimate. Oh really? All questions to establish the truth cannot be looked at if they might destroy the premise that so many have assumed and thus far built their court cases upon? Obama could be lying about his place of birth, etc., but somehow NOT his real parentage??? How nicely tied up … except for the many facts that just aren’t as yet truthfully established.

    And with all of the radical “czars” he’s purposefully surrounded himself with, perhaps an even more radical influence (other than a man he hardly had any contact with in Africa) over him could establish the reason behind this web/network of fellow America haters.

  32. 08/26/2009AnotherReader says:

    Ah here we go with the Potomac Two Step. Dance, dance, dance……….

  33. 08/26/2009David says:

    The update was not at all convincing that the United States adopted English common law as our national law. Everyone who tries to make that argument suffers from an abject failure of reason.

    Do they not know about our Constitution and the laws made in pursuance thereof? That is our national law. Everything listed in the Constitution as a power of the federal government is under the authority of that government. That includes presidential eligibility requirements, naturalization, or anything else found in that document. Not only that, but the laws that conflict with our constitutional principles and republicanism (such as those of monarchy and the common law of England created under that form of government) are inapplicable to our national government and the laws they adopt.

    In other words, ENGLISH COMMON LAW CANNOT BE THE BASIS FOR OUR NATIONAL LAWS OF CITIZENSHIP, AND THEREFORE, THE ELIGIBILITY REQUIREMENTS FOR PRESIDENT.

    Why are so many people able to overlook this very fundamental point of the American Revolution and the results of the Constitutional Convention?

    We explicitly rejected the monarchical system and any laws relative to that system of governance. That absolutely includes the notion of subjection to any leader, which was so eloquently defined by Blackstone. Yet we have a court, pseudo-historians, pseudo-scholars, pseudo-“lawyers,” and programmed subjects of our federal government trying to tell us that it was Blackstone’s definition of “natural-born subject” that was used in our Constitution. And these are the people that we’re supposed to rely on for legal interpretations?

    It’s downright preposterous and nauseating!

    And I’m sorry, but the person who wrote the argument for common law must have no reading comprehension skills. It’s right there at two different points in his arguments:

    “…so far as the same is not inconsistent with the Constitution and laws of the United States…”

    “…so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State…”

    Please tell me that was just a minor lapse in their mental acuity.

    Yes, we did adopt some of the English common law. But not if those laws or the principles behind those laws contradicted the principles of republicanism and our Constitution – and the laws made in pursuance thereof. Our national laws are not created or adopted by court precedent – and certainly not court precedent from another nation. They are created by the Constitution and the laws adopted by Congress. Period.

    If there is anyone who can prove that this is not the case – that the American Revolution was in fact fought in order to adopt the same laws as the British Monarchy – then please point out that historical body of evidence that has been completely overlooked for the past 230 years.

  34. 08/26/20091LisHell says:

    Phil,
    Someone on another site found some interesting information about George Collins, Esq.

    Mr. Collins was disbarred for bigamy and perjury, and was sentenced to 14 years in the state penitentiary for the same.

    http://tinyurl.com/m7eaac

  35. 08/27/2009Civis Naturaliter Natus says:

    HD,

    Well we could not make this stuff, up, but you certain have a long track record…

    Most Italian Immigrants had US citizen children, because they were a law respecting bunch of folks, not to mention they were segregated into Ellis Island, and were here with alien cards…you see, but you don’t understand…Leo is saying that Wong Kim Arc required permanent residence for the children to fall under the 14th Amendment…that applied to nearly all Italian Immigrants, but not to any transient Italian laborers…seing that most transients don’t come with their wives…that’d make sense…

    You seem intent on denegrating both the nation of your birth and the nation of your race…you are shameless…!

  36. 08/27/2009bystander says:

    MK says:
    August 26, 2009 at 9:08 pm

    What could be very disconcerting to all of the energy, efforts, research, argumentation, and the differing sides all convinced of their own outlooks in this NBC question is the fact that no one has any authentic proof that the man claimed to be the biological father of Mr. Obama (jr.) is actually who the dysfuntionals involved say he is. Jr. has absolutely no characteristics that outwardly appear to match (as do the other genetically claimed off spring of the man) – other than a contribution to the black portion of his identity.

    Legally it doesn’t matter – in law the father is deemed to be the person named on the birth certificate.

  37. 08/27/2009Mimi says:

    What’s happened to Texas Darlin’ blog? I can’t read it. It says that the blog is now “protected.” What does it mean?

  38. 08/27/2009Mimi says:

    Historian Dude, brygenon, Leo already answered your objections on his blog.

  39. 08/27/2009earl says:

    MK says:
    August 26, 2009 at 9:08 pm
    “Jr. has absolutely no characteristics that outwardly appear to match (as do the other genetically claimed off spring of the man) – other than a contribution to the black portion of his identity.”

    Can you list your qualifications to make such a visual judgement? Perhaps you are a geneticist? Anthropologist? This is a perfect of example of how obsessed and desperate birthers are. Today it’s the birth certificate, next you’ll want his DNA. And MK, it doesn’t matter. He was born in Hawaii to an American citizen. Native born = natural born = Eligible. A year gone and you folks have yet to prove otherwise. And don’t go down that path of, we don’t even know if Ann is his mother. Take one look at the picture in the link and try to deny where he gets most of his facial characteristics. You people are fricking loons. Thank goodness you marginalize yourselves more every day with your foolishness and your Queen Orly leading the way.
    http://en.wikipedia.org/wiki/Stanley_Armour_Dunham

  40. 08/27/2009earl says:

    HLC said:

    ” then would not all these so-called “anchor babies” born to foreign & illegal women here, not be foreigners as well, and not citizens as we call them now? ”

    US Law, Title 8, Chapter 12, Subchapter 3, Part 1, Sec 1401 states that anyone, ANYONE born in the United States is a citizen at birth. That means EVERY child born here to ANYONE is a native citizen, a natural born citizen and eligible to be President. Even the child born 20 minutes after his mama wades across the Rio Grande. If you don’t like it, work to change the law.
    http://www.law.cornell.edu/uscode/8/1401.html

    The ignorance of basic law and civics by birthers is appalling. “Anchor baby” is a term made up by xenophobes to confuse people who don’t know the law. Don’t be a chump and believe the BS of people who know you don’t know any better. Read.

  41. 08/27/2009Phil says:

    earl,

    MK says:
    August 26, 2009 at 9:08 pm
    “Jr. has absolutely no characteristics that outwardly appear to match (as do the other genetically claimed off spring of the man) – other than a contribution to the black portion of his identity.”

    Can you list your qualifications to make such a visual judgement? Perhaps you are a geneticist? Anthropologist? This is a perfect of example of how obsessed and desperate birthers are. Today it’s the birth certificate, next you’ll want his DNA. And MK, it doesn’t matter. He was born in Hawaii to an American citizen. Native born = natural born = Eligible. A year gone and you folks have yet to prove otherwise. And don’t go down that path of, we don’t even know if Ann is his mother. Take one look at the picture in the link and try to deny where he gets most of his facial characteristics. You people are fricking loons. Thank goodness you marginalize yourselves more every day with your foolishness and your Queen Orly leading the way.
    http://en.wikipedia.org/wiki/Stanley_Armour_Dunham

    If we “loons” are standing between you and the truth, guess who’s closer to the truth?

    Who’s more “loon”ey –those of us bringing up questions, or those such as yourself who repeatedly say that we’re “marginaliz”ing ourselves every day, only to see the press constantly pick up on this story?

    Further, realize that all of the “first you’ll want this, then you’ll want that” are purely your own words, your own baseless leading conclusions. Obviously, you are free to think as you wish, but realize that, for whatever reason, you’re trying to set the situation up in your own head to justify the constant pejoratives that proceed from your own commentary.

    It’s really simple, earl. If you don’t like what’s being said here, go elsewhere. The constant haranguing of others by individuals such as yourself simply shows that resorting to such ad hominems indicates you’ve lost the argument.

    Sometimes I really think I should ban individuals like you for presenting nothing new and original to why we shouldn’t be questioning this President. You could at least get creative and come up with new lines of harassment!

    -Phil

  42. 08/27/2009HistorianDude says:

    Mimi:

    Historian Dude, brygenon, Leo already answered your objections on his blog.

    Nonsense. In fact Leo has already deleted my objections on his blog. I was one of the first commenters in that thread… but he panicked and is now furiously distancing himself from Collins’ actual positions.

    He is running away from the actual substance of Collin’s article because it was rather clear to several people (but inexplicably, not to the brilliant Leo Donofrio) that if Collins is correct then Leo is himself most likely an illegal alien. Leo (like Orly and the FKBC) leaped before looking and swallowed what I still suspect is a deliberate punk from those UCONN students.

    Collins (a mere law student at the time he wrote this article) had nothing to say about natural born citizenship. This is one of the two reasons he never brings up Chester Arthur… he was not considering Article 2 at all. The other reason was that Arthur was a white man, and the article was primary designed as an argument against offering Amendment 14 citizenship to the Chinese.

    But Leo was so excited by the explicit (and Birther friendly) references to de Vattel and Lynch v. Clark that he missed the other obvious implications of the article. This is what happens when Leo is on one of his periodic manic upswings. He fires before he has bothered to aim.

    Leo’s sloppiness is also demonstrated by his egregious misrepresentation of George D. Collins’ suitability as an authority. He clearly made no effort to find out who this guy actually was, and instead began inexplicably inflating his resume. he did not even notice that Collins was not a lawyer when he wrote it… he was still just a kid in school.

    But the big omission Leo makes shows that he is less than the Constitutional law expert he pretends.

    Let’s ignore that Collins was a disbarred, convicted perjurer and international fugitive bigamist who adulterously impregnated his own sister-in-law at least twice and then tried to steal her life savings before ending up running the jute mill in San Quentin Prison. What I don’t get is this:

    How is it that Leo pretends to be expert on the Constitutional law surrounding citizenship and yet he never noticed that Collins was the losing attorney in Wong Kim Ark?

    Wong Kim Ark is the single most important case bearing on this entirely controversy. Collins’ arguments in this article would years later become the same ones he made in front of the Supreme Court and end up being rejected 6-2.

    How could Leo have missed that?

    No, Mimi. Leo is knee deep in damage control, and to survive he is not “answering” my objections… he is conceding them.

    And he is throwing Collins under the bus.

  43. 08/27/2009HistorianDude says:

    C. n. natus:

    Most Italian Immigrants had US citizen children

    Not if Collins is right.

  44. 08/27/2009HistorianDude says:

    David:

    In other words, ENGLISH COMMON LAW CANNOT BE THE BASIS FOR OUR NATIONAL LAWS OF CITIZENSHIP…

    Your opinion is noted.

    The opinion of the US Supreme Court, though, appears to differ with yours:

    The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.

    United States vs. Wong Kim Ark

    http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html

  45. 08/27/2009Sharon 2 says:

    Driving off a bridge, leaving the scene of an accident with a victim still in the car submerged in water (after having been partying and leaving a pregnant wife is at home), acts which would land most people in jail or at least take one out of politics (I mean look at Sanford who had an affair), did not take away the accomplishments of the person in question in his career as a Senator. Using that standard, why should anyone ignore the legal analysis of George Collins based upon character? Sticking to the issues, the Supreme Court has been known to overturn itself, or construe its past holdings in unexpected ways.

  46. 08/27/2009HistorianDude says:

    Sorry… but I was just wandering about on the job, chuckling at something goofy that C.n. natus said, and I had to come back and share my amusement.

    He wrote:

    Leo is saying that Wong Kim Arc required permanent residence for the children to fall under the 14th Amendment…that applied to nearly all Italian Immigrants, but not to any transient Italian laborers…seing that most transients don’t come with their wives…that’d make sense…

    It’s the “that’d make sense” part that I find so funny.

    So… if they didn’t bring their wives, where were those children coming from?

    :o

  47. 08/27/2009MGB says:

    1LisHell: Perhaps so (Collins disbarred/imprisoned), but Pres. Bill Clinton was impeached and disbarred for perjury, although he managed to evade prison (laws may have been enforced more stringently and judges may have been harder upon offenders in Collins’s time, than today. I’ll let Clinton skate on the adultery charge, since Hillary apparently did.)

    Do these facts mean that Clinton was, therefore, NEVER right about anything?

    Do these facts mean that everything Clinton did as a Governor, POTUS, freelance lecturer, world gadabout, etc., is therefore discredited?

    You see, 1LisHell, that’s exactly the problem with too many people these days. Instead of addressing a person’s logical arguments, those who disagree with said arguments personally ATTACK the speaker, believing that somehow that refutes his arguments. It does not. It indicates, instead, that his opponents CANNOT refute his arguments. Or else they’re too lazy to do so. (I’m not saying that any of the above applies to you, 1LisHell. I’m saying this because others relate these facts about Collins with such decided glee.)

    earl and MK: For what it’s worth, I do believe that BHO Sr. is his father. Look at George Onyango Obama. Look at Aunt Zeituni Onyango. You need only go to the front page of this blog and compare her face to Obama’s, which appears on the right in a separate window. And yes, he does also very much resemble his mother Stanley Ann and grandfather Stanley Dunham.

    Whatever the case, IF BHO Sr. was named on his birth certificate (or any other legal document)as his father, then under the law BHO Sr. IS his father. IF, however, Lolo Soetoro legally adopted him, the birth records were changed, and BHO Sr.’s paternity was therefore legally dissolved (if this is even possible), then your guess is as good as mine (unless one of you is a lawyer) about how a court would rule on his “natural born citizenship.” THAT’s exactly WHY we need to see all the vital records and WHY it should be adjudicated.

    However, jbjd (on the jbjd blog at WordPress) has concluded that Pelosi allegedly committed election fraud, perhaps in many states, when she certified that Obama was eligible to be placed on ballots, because she DID NOT verify his citizenship status. If people across this country request their state attorneys general to investigate, perhaps something will start to unwind.

    Mimi: Texas Darlin blog is on hiatus for personal reasons. A cross-country move, was one reason given.

  48. 08/27/2009Benaiah says:

    Yo Ho All Hands Hoist the Colors High…

    In order to effect the timely halt to deteriorating conditions and to insure the common good, a state of emergency declared for these territories by decree of law and Rahmadinejihad Emanuel Noriega, duly appointed representative of his majesty the king…

    By decree according to martial law the following statutes are temporarily amended:

    Right to Assembly – Suspended
    Right to Habeas Corpus – Suspended
    Right to Legal Counsel – Suspended,
    Right to Verdict by Jury of Peers – Suspended

    By decree all persons found guilty of …opposing Obahmadinejihad… shall be sentenced to hang by the neck until dead…

  49. 08/27/2009MK says:

    bystander: Legally it doesn’t matter – in law the father is deemed to be the person named on the birth certificate.

    And, my point WAS that that premise upon which everyone seems to be operating HAS NOT been authenticated. So why all the energy before that is made certain?? I mean, if the BC is fraudulent then the info on it is moot.

  50. 08/27/2009MK says:

    earl: And MK, it doesn’t matter. He was born in Hawaii to an American citizen.

    Prove it. No one else has … so then, back to you, where are your credentials to verify what no one else has, in any specificity, been able to do?

  51. 08/27/2009David says:

    1Lishell,

    “Mr. Collins was disbarred for bigamy and perjury, and was sentenced to 14 years in the state penitentiary for the same.”

    Bill Clinton was a philanderer/cheater, had his law license suspended for perjury, and was impeached. Does that mean every reasonable conclusion he has ever made was wrong?

    What exactly is your argument? Or was that it?

  52. 08/27/2009David says:

    earl,

    “US Law, Title 8, Chapter 12, Subchapter 3, Part 1, Sec 1401 states that anyone, ANYONE born in the United States is a citizen at birth. That means EVERY child born here to ANYONE is a native citizen, a natural born citizen and eligible to be President. Even the child born 20 minutes after his mama wades across the Rio Grande. If you don’t like it, work to change the law.”

    The law does not need to be changed – it’s the same as it was 140 years ago. You just forgot to submit key parts of the law in your inaccurate comment.

    “The following shall be nationals and citizens of the United States at birth:

    (a) a person born in the United States, AND SUBJECT TO THE JURISDICTION THEREOF;”

    Furthermore, you said that “every” child born to “anyone” in the United States is a “natural born citizen.” Could you also point out the relevant clause of our citizenship laws that states that? You seem to have evidence of explicit language in our law that could clear up the entire eligibility matter. So, please share it with us.

  53. 08/27/2009Pixel Patriot says:

    With Sean Hannity’s blind loyalty to the RNC and his dereliction of duty to the American Citizens on the NBC requirement AND enforcement, could someone please tell me if it is possible to be de-Hannitized?

  54. 08/27/2009qwertyman says:

    So you’re saying that this law review article from over a century ago (and over a decade before Wong Kim Ark) trumps a subsequent Supreme Court case and the cases since that have referred to it positively?

    Did you miss the blatant misogyny (if an American father married an alien parent – citizen at birth; if an alien father married an American mother – not so much) the racism (the Chinese know nothing and are utterly unfit and incompetent for citizenship) and how completely these arguments were destroyed by the Supreme Court in Wong?

    It’s like citing a journal article written in 1940 supporting school segregation in support of you belief that school segregation is still legal (but disregard Brown v. Board that happened a decade later).

  55. 08/27/2009Phil says:

    qwertyman,

    So you’re saying that this law review article from over a century ago (and over a decade before Wong Kim Ark) trumps a subsequent Supreme Court case and the cases since that have referred to it positively?

    Did you miss the blatant misogyny (if an American father married an alien parent – citizen at birth; if an alien father married an American mother – not so much) the racism (the Chinese know nothing and are utterly unfit and incompetent for citizenship) and how completely these arguments were destroyed by the Supreme Court in Wong?

    It’s like citing a journal article written in 1940 supporting school segregation in support of you belief that school segregation is still legal (but disregard Brown v. Board that happened a decade later).

    There’s a term that I presently forget that is the logical fallacy whereby one uses one’s own perspective of the political winds of today to somehow negatively judge the right of someone in the past to hold an opinion.

    Regardless, your point — if taken to its logical conclusion — would be akin to saying that since the Bible mentions things such as slavery, we should completely disregard it altogether.

    Instead, what I find interesting is that most opposition commenters who have weighed in on this post seemed to have attacked the messenger (not too surprising on that one) instead of the message, once again. I suppose ad hominems will never get old.

    -Phil

  56. 08/27/2009MGB says:

    David: Who was it who said that great minds think alike? :)

  57. 08/27/2009MGB says:

    Anachronism?

  58. 08/27/2009HistorianDude says:

    Sharon 2:

    Driving off a bridge, leaving the scene of an accident with a victim still in the car submerged in water (after having been partying and leaving a pregnant wife is at home), acts which would land most people in jail or at least take one out of politics (I mean look at Sanford who had an affair), did not take away the accomplishments of the person in question in his career as a Senator. Using that standard, why should anyone ignore the legal analysis of George Collins based upon character? Sticking to the issues, the Supreme Court has been known to overturn itself, or construe its past holdings in unexpected ways.

    See… Sharon, if you’re going to insist on using the logical fallacy of tu quoque, then it would help if you actually used it correctly. Instead… your attack is regarding nothing even being discussed in this thread. I don’t think the late Senator Kennedy’s position on natural born citizenship has even been mentioned here.

    Back to the matter at hand:

    Mr. Collins has no significant accomplishments “to take away from.” His “prominence” comes from two sources… 1) the set of arguments to which he appears to have devoted more than his entire legal career and which were rejected by the US Supreme Court, and 2) a criminal career so egregious and scandalous that he gets a chapter in a book written about it.

    Sticking to the issues? Okay. Mr. Collin’s arguments have been rejected by the Supreme Court as false. That specific rejection has recently been referenced positively by almost the entire Supreme Court.

    Don’t hold your breath for them to overturn anytime soon.

  59. 08/27/2009HistorianDude says:

    David:

    “The following shall be nationals and citizens of the United States at birth:

    (a) a person born in the United States, AND SUBJECT TO THE JURISDICTION THEREOF;”

    Also covered in Wong Kim Ark:

    The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases — children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State — both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.

    So there you go.

  60. 08/27/2009HistorianDude says:

    Phil:

    Instead, what I find interesting is that most opposition commenters who have weighed in on this post seemed to have attacked the messenger (not too surprising on that one) instead of the message

    Who needs to attack the message? The Supreme Court has already done that for us all.

    Attacking the messenger… well, we do that just because it’s so much fun.

  61. 08/27/2009David says:

    HistorianDude,

    “Your opinion is noted.

    The opinion of the US Supreme Court, though, appears to differ with yours:”

    Your vast ignorance and inability to comprehend is noted. Please re-read and try really hard to comprehend the original comment.

    (And I’m glad you made the distinction that the Supreme Court’s decision was merely an “opinion” – like mine. That’s a great first step! Now, you only need to understand the difference between a reasonable opinion and a flawed one – such as one that claims our national citizenship laws were based on feudal principles.)

    Good luck with your learning process!

  62. 08/27/2009Sue says:

    “Regardless, your point — if taken to its logical conclusion — would be akin to saying that since the Bible mentions things such as slavery, we should completely disregard it altogether.”

    And what does the Bible say regarding slavery Phil?

  63. 08/27/2009bystander says:

    MK said: And, my point WAS that that premise upon which everyone seems to be operating HAS NOT been authenticated. So why all the energy before that is made certain?? I mean, if the BC is fraudulent then the info on it is moot.

    It doesn’t need to be authenticated – it is prima facae evidence of the facts. If you want to challenge it – you have to prove it’s a forgery. Good luck!

  64. 08/27/2009qwertyman says:

    There’s a term that I presently forget that is the logical fallacy whereby one uses one’s own perspective of the political winds of today to somehow negatively judge the right of someone in the past to hold an opinion.

    Regardless, your point — if taken to its logical conclusion — would be akin to saying that since the Bible mentions things such as slavery, we should completely disregard it altogether.

    Instead, what I find interesting is that most opposition commenters who have weighed in on this post seemed to have attacked the messenger (not too surprising on that one) instead of the message, once again. I suppose ad hominems will never get old.

    His message was on the wrong side of Wong Kim Ark. Again, it’s like citing a law review article endorsing school segregation written in 1940 to build an argument that school segregation is currently legal. Subsequent developments thoroughly discredited that article and rendered it moot.

    And yes, his thesis is rooted in misogyny and racism, and I will not hesitate to call somebody out for that. If you’re still trying to argue a two-parent requirement, then you should try to avoid using articles that justify that requirement on racial prejudice and inherent gender inequality.

    As a total parenthetical, it may very well be a good idea to ignore the Bible since it ENDORSES slavery and various other things that would be considered barbaric today.

  65. 08/27/2009earl says:

    David says:
    August 27, 2009 at 12:45 pm
    “Furthermore, you said that “every” child born to “anyone” in the United States is a “natural born citizen.” Could you also point out the relevant clause of our citizenship laws that states that?”

    Yep. The very phrase of the US Code you picked out. US Law, Title 8, Chapter 12, Subchapter 3, Part 1, Sec 1401 Item 1a). A person born in the United States who is subject to the jurisdiction thereof, is any child born here unless it is the child of an ambassador or foreign soldier in a time of war. Barack Obama was born in Hawaii. His mother was a native US citizen and his father was a legal resident. Neither was an ambassador and the US was not at war with anyone in 1961: citizen at birth, a native citizen, a Natural Born Citizen. Prove otherwise.

  66. 08/27/2009earl says:

    Phil says:
    August 27, 2009 at 9:35 am
    “Who’s more “loon”ey –those of us bringing up questions, or those such as yourself who repeatedly say that we’re “marginaliz”ing ourselves every day, only to see the press constantly pick up on this story?”

    If you think the press is “picking up on this story” in a good way, you are definitely loony. Every mainstream media story has been, “birthers: can you believe their crazy crap? Orly: crazy” And they are right.

  67. 08/27/20091LisHell says:

    “You see, 1LisHell, that’s exactly the problem with too many people these days. Instead of addressing a person’s logical arguments, those who disagree with said arguments personally ATTACK the speaker, believing that somehow that refutes his arguments. It does not. It indicates, instead, that his opponents CANNOT refute his arguments. Or else they’re too lazy to do so.”

    A disbarred attorney is someone who was found to be unfit to practice law. A lawyer is disbarred because they lack the professional judgment or skills to be a lawyer. Disbarment directly to the person’s legal skills (or lack thereof), and should be a major factor in weighing the credibility of their claims. Disbarment is not something to be taken lightly-state supreme courts are very, very hesitant to impose a permanent disbarment. They prefer long suspensions. See Clinton’s state license, for instance. Clinton was suspended from practicing in Arkansas for five years, not disbarred in Arkansas. He subsequently resigned his membership in teh bar, I believe.

  68. 08/28/2009KJ says:

    Mimi says:
    August 27, 2009 at 3:58 am

    What’s happened to Texas Darlin’ blog? I can’t read it. It says that the blog is now “protected.” What does it mean?

    Texas Darlin’ had to shut down the blog. She was moving and could not keep it up during the move. I don’t know if she will be back or not.

    DrKate has started a blog for the regulars of Texas Darlin’ at drkatesview.wordpress.com

    There was a nice friendly community at Texas Darlin'; there were pumas, birthers, lawyers and anyone else that wanted to join in. It’s too bad that the blog had to be shut down.

  69. 08/28/2009GeorgetownJD says:

    “Historian Dude,

    How is it that Leo pretends to be expert on the Constitutional law surrounding citizenship and yet he never noticed that Collins was the losing attorney in Wong Kim Ark?

    Wong Kim Ark is the single most important case bearing on this entirely controversy. Collins’ arguments in this article would years later become the same ones he made in front of the Supreme Court and end up being rejected 6-2.

    How could Leo have missed that?”

    He butchered the 10th Circuit’s opinion in Craig, selectively slicing and splicing the language to make the holding fit his argument. And he completely ignored (as did Collins) the Congressional Record on the subject of debate on the 14th Amendment’s citizenship clause, wherein the Chinese citizenship question was explicitly addressed. Such sloppy research. Yeah, HD, this was a very public, very humiliating misstep for Jet Schizo.

  70. 08/28/2009Zoom says:

    The update is useless.Coomon law is non-existent for all intents and purposes in the US,Inc.The 25th Amendment proves we have had a president of a corporate entity for a long time.The 14th Amendment made us all slaves of that corporation,and granted black slaves the same standing as slaves of the corporation instead of the plantation owners.Birth certs,SS cards,Driver’s Lic.and all the other contracts we engage in means we have no leg to stand on with the original Amendmnets or Constitution.That’s why Barry is not sweating over this eligbility issue.A president of a corporation doesn’t need to be an nbc.Sad,but true.Some people have opted out of the system and therefore have prevailed in lawsuits under common law,but it is so rare we need to understand that it is not the law of the land.

  71. 08/28/2009Civis Naturaliter Natus says:

    Phil,

    Heads up

    “Born in Mombasa? — The Leo Omolo Interview

    http://thepostnemail.wordpress.com/

    Mr. Omolo, life long friend of Obama Sr., clarifies the Sarah Obama statement about Mombasa…

  72. 08/28/2009HistorianDude says:

    Phil:

    There’s a term that I presently forget that is the logical fallacy whereby one uses one’s own perspective of the political winds of today to somehow negatively judge the right of someone in the past to hold an opinion.

    It’s called “anachronism,” but it’s not really considered a “logical fallacy,” It is simply wrong to judge a person of one era by the moral, ethical or political standards of another era. Thus (it can be argued) we should not hold Collins’ explicit racism against him, because racism was not considered a moral failing in the 1890s… at least to the same extent it is considered today. His other moral failings (perjury, bigamy, adultery and theft) are not however as easy to dismiss as anachronistic.

    But to the actual point, no one has argued that Collins had no right to hold an opinion. The argument is that his opinion was explicitly rejected as false by the legal authority that Birthers are depending on to settle the definition of natural born citizen. Rather than being “support” to the Birther cause, the strange story of George D. Collins is actually a rather explicit demonstration that his (and the doppelganger Birther) arguments are false.

    Regardless, your point — if taken to its logical conclusion — would be akin to saying that since the Bible mentions things such as slavery, we should completely disregard it altogether.

    Knowing that you enjoy theological conversations, and since the threadjack here was actually your own, I hope you will indulge a question regarding this comment.

    Now… as we discussed, anachronism is the illegitimate judgment of somebody or something by standards that are of a different era, time and place. As we saw, it is wrong for example to judge Collins’ 19th century racism by 21st century standards.

    God, however, cannot be judged anachronistically since He is both timeless and eternal. If the Bible merely “mentions things such as slavery” that would be one thing. But if the Bible actually approved of slavery, that would be something very different. While still not justifying that “we should completely disregard it altogether,” your comment would lead me to understand that you are advocating that we disregard it in part.

    Is that what you are advocating here?

  73. 08/28/2009Phil says:

    HistorianDude,

    Attacking the messenger… well, we do that just because it’s so much fun.

    I guess I should pleasurably employ the measure of banning your commentary from my web site, going forward, because that would be “so much fun” for me (and, I think, others) as well.

    -Phil

  74. 08/28/2009Phil says:

    Sue,

    “Regardless, your point — if taken to its logical conclusion — would be akin to saying that since the Bible mentions things such as slavery, we should completely disregard it altogether.”

    And what does the Bible say regarding slavery Phil?

    (Getting ever the more closer to banning you from my site if for no other reason than your inability to maintain the thread of discussion on the path it was clearly meant…)

    The point of this thread and posting is not to talk about slavery in the Bible; the point of the thread is to show that just because something controversial is mentioned in what is otherwise considered an authoritiative work or commentary (at least by some) does not mean that the entire work should be dismissed.

    Please do tell me you have a brain in that head of yours. Then, begin using it, because you are beginning to wear out your welcome on my site.

    -Phil

  75. 08/28/2009Phil says:

    earl,

    Phil says:
    August 27, 2009 at 9:35 am
    “Who’s more “loon”ey –those of us bringing up questions, or those such as yourself who repeatedly say that we’re “marginaliz”ing ourselves every day, only to see the press constantly pick up on this story?”

    If you think the press is “picking up on this story” in a good way, you are definitely loony. Every mainstream media story has been, “birthers: can you believe their crazy crap? Orly: crazy” And they are right.

    Congratulations! Even though you cannot presently see this comment, you are officially the first commenter on my site to be banned! You will now be seeing a message from me as such, and that the ban will eventually be lifted once you have spent some time away from my site.

    -Phil

  76. 08/28/2009Phil says:

    HistorianDude,

    God, however, cannot be judged anachronistically since He is both timeless and eternal. If the Bible merely “mentions things such as slavery” that would be one thing. But if the Bible actually approved of slavery, that would be something very different. While still not justifying that “we should completely disregard it altogether,” your comment would lead me to understand that you are advocating that we disregard it in part.

    Is that what you are advocating here?

    No. The sidebar thread was meant to show that simply because someone or something (as in, what is written) has what some would call racist or bigoted views does not mean that said author holding those views is subsequently disqualified from being an opinion-possessor (I think I’ve made this point numerous times on my site).

    More specifically — and back to the main issue at hand — some of attempted to discredit Mr. Berg’s views on Mr. Obama’s eligibility because Mr. Berg once took up at least one case for “truthers,” individuals who believe that the 9/11 attacks were known and physically promulgated by the US government. In other words, just because someone holds views that I disagree with doesn’t mean they’re incapable of holding legitimate opinions.

    -Phil

  77. 08/28/2009MGB says:

    Phil said, “I guess I should pleasurably employ the measure of banning your commentary from my web site, going forward, because that would be “so much fun” for me (and, I think, others) as well.”

    I second that emotion, but I solve the problem by simply skipping certain comments. As blog owner and moderator, though, you don’t have that luxury.

  78. 08/28/2009qwertyman says:

    (And I’m glad you made the distinction that the Supreme Court’s decision was merely an “opinion” – like mine. That’s a great first step! Now, you only need to understand the difference between a reasonable opinion and a flawed one – such as one that claims our national citizenship laws were based on feudal principles.)

    But unlike the opinions of you and me, opinions of a majority of the Supreme Court are binding in their results and holdings. Their reasoning (and to a lesser extent the dicta) will be considered persuasive on other courts.

    I mean, it was the opinion of the Supreme Court that separate but unequal is inherently unequal. It was the opinion of the Court that abortion should be legal. Are you seriously saying that there was no legal consequences or ramifications on the basis that these are mere “opinions?”

  79. 08/28/2009David says:

    Phil,

    Do the people who comment here not understand that court precedent is not the law – it is only an interpretation of it? Or that there is nothing in our Constitution that states the Supreme Court is bound by precedent? The Supreme Court is not in any way forced to adhere to the exact findings of a previous court, especially if that previous court’s decision was wrong. There is no law…it is only the court’s “policy.”

    Do they not also understand what “construction” is and how it applies to the 14th Amendment in the same way as any other law?

    Do these people not understand that Wong Kim Ark was a bad (wrong) decision because it failed to identify three basic principles? Those were 1) that our national laws were not derived from feudal origins, 2) that the Congressmen that had written and adopted the 14th Amendment explicitly defined what “subject to the jurisdiction thereof” meant, and 3) that the United States and China had a treaty between them regarding whether or not Chinese workers could become citizens.

    It amazes me that so many people will blindly accept and cite a poorly reasoned and destructive opinion – and believe that it is the law – simply because it supports their argument about Barack Obama. They are the epitome of partisan jackassery. (Sorry…I could not think of a more accurate description.)

  80. 08/28/2009Sharon 2 says:

    Leo is saying that Wong Kim Arc required permanent residence for the children to fall under the 14th Amendment…that applied to nearly all Italian Immigrants, but not to any transient Italian laborers…seing that most transients don’t come with their wives…that’d make sense…

    It’s the “that’d make sense” part that I find so funny.

    So… if they didn’t bring their wives, where were those children coming from?

    August 27, 2009 at 11:26 am

    ***

    For many Italian immigrants, migration to the United States could not be interpreted as a rejection of Italy. In reality, it was a defense of the Italian way of life, for the money sent home helped to preserve the traditional order. Rather than seeking permanent homes, they desired an opportunity to work for a living, hoping to save enough money to return to a better life in the country of their birth.
    Historians use the phrase “birds of passage” to describe immigrants who never intended to make the United States their permanent home. Unable to earn a livelihood in their home countries, they were migratory laborers. Most were young men in their teens and twenties, who planned to work, save money, and return home. They left behind their parents, young wives, and children, indications that their absence would not be long. Before 1900 an estimated 78 percent of Italian immigrants were men.

    Many of them traveled to America in the early spring, worked until late fall, and then returned to the warmer climates of their southern European homes winter. Overall, 20 to 30 percent of Italian immigrants returned to Italy permanently.

    http://www.digitalhistory.uh.edu/historyonline/italian_immigration.cfm

    I guess I don’t see what was so funny about what Civis Naturaliter Natus said.

    (Birthers- they all look alike…)

  81. 08/28/2009Phil says:

    David,

    Phil,

    Do the people who comment here not understand that court precedent is not the law – it is only an interpretation of it? Or that there is nothing in our Constitution that states the Supreme Court is bound by precedent? The Supreme Court is not in any way forced to adhere to the exact findings of a previous court, especially if that previous court’s decision was wrong. There is no law…it is only the court’s “policy.”

    Do they not also understand what “construction” is and how it applies to the 14th Amendment in the same way as any other law?

    Do these people not understand that Wong Kim Ark was a bad (wrong) decision because it failed to identify three basic principles? Those were 1) that our national laws were not derived from feudal origins, 2) that the Congressmen that had written and adopted the 14th Amendment explicitly defined what “subject to the jurisdiction thereof” meant, and 3) that the United States and China had a treaty between them regarding whether or not Chinese workers could become citizens.

    It amazes me that so many people will blindly accept and cite a poorly reasoned and destructive opinion – and believe that it is the law – simply because it supports their argument about Barack Obama. They are the epitome of partisan jackassery. (Sorry…I could not think of a more accurate description.)

    In constitutional theory, all three Branches can co-equally interpret the Constitution. However (again, in theory), only the Legislative can actually change the law, and the Executive can only make the law of effect while the Judiciary is merely tasked with interpreting the law.

    -Phil

  82. 08/28/2009HistorianDude says:

    Sharon 2:

    I guess I don’t see what was so funny about what Civis Naturaliter Natus said.

    Apparently not.

    :D

  83. 08/28/2009earl says:

    Really, you didn’t think I could see it? You are not such the expert IT guy after all are you? Banning people who disagree with you, the hallmark of a birther fanatic. Ooooo, big bad Phil, Oooooo. Grow up.

  84. 08/28/2009Sharon 2 says:

    It is the purpose of the judiciary to determine what the framers meant when they mandated that the president be natural born. Someone with standing can get to that answer, probably someone in the military. When and if that interpretation should occur, it should be done by interpreting the provision through the eyes of the framers. Whether the interpretation of what the framers had in mind should apply now is a different matter. Our Constitution has a mechanism in place for amendment. Slavery was abolished. Women were given the right to vote. Wrongs were corrected. A definition of natural born citizen (as it pertains to the presidency) can and should be construed by the Supreme Court and if that definition is deficient to enough people, then amend the Constitution. Don’t interpret the definition with the intended purpose of determining Obama to be eligible, or ineligible, although one or the other will occur.

    [Several years ago, I think it was Adam Corolla and Jimmy Kimmel set up a stand urging people to sign a petition to eliminate Women's Suffrage to see how many people understood the term. Many did not and signed away. Sorry for the digression]

    The Constitution has to be interpreted as the framers intended, and then amended by the process outlined in the Constitution if there is the requisite support. The fathers of our country knew that masses of people would come from abroad. They must have had that in mind when contemplating the requirements for the presidency. I just heard a line from Mark Levin’s book, and I have to paraphrase. If it is wrong to interpret the Constitution as our forefathers intended because that was so long ago, then any interpretation of law we make now is similarly irrelevant to future generations. I am sure I have done a fantastic job of butchering. I’ll try to track that down so that my point is better made.

  85. 08/28/2009HistorianDude says:

    David:

    Do the people who comment here not understand that court precedent is not the law – it is only an interpretation of it?

    Of course we don’t. Primarily because it is not true. The United States is a “common law” country. It has always been so.

    We fully understand that in order to make the case that a natural born citizen requires two citizen parents, you must reject the existence of common law. You yourself have repeatedly tried to do exactly that. It is ironic that yet another faction in the Birther camp (specifically the “grand jury” faction) insist that it is common law that grants them the basis for their own actions.

    (As an aside to Sharon: See? I don’t think all Birthers look alike after all. You appear to have been wrong again.)

    But sadly for your argument, the common law is not only explicitly mentioned twice in the Constitution itself (check the 7th Amendment), but it is formally adopted into the law of 49 out 50 States… yes… by statute!

    Do these people not understand that Wong Kim Ark was a bad (wrong) decision because it failed to identify three basic principles? Those were 1) that our national laws were not derived from feudal origins, 2) that the Congressmen that had written and adopted the 14th Amendment explicitly defined what “subject to the jurisdiction thereof” meant, and 3) that the United States and China had a treaty between them regarding whether or not Chinese workers could become citizens.

    It is not important if we understand that. It is only important if the US Supreme Court understands that. And unfortunately, almost the entire current membership of the Supreme Court is already on record as considering Wong Kim Ark to be “good law.”

    Welcome to the reality of your situation.

  86. 08/28/2009HistorianDude says:

    David:

    And I’m glad you made the distinction that the Supreme Court’s decision was merely an “opinion” – like mine.

    Excuse me? Did you just try and pretend that your opinion was somehow comparable to that of the Supreme Court of the United States?

    I gotta tell ya, its a sad thing to realize that it’s barely noon and I’ve already been presented with what will probably be my biggest laugh of the day.

    Thank you for that. I am being sincere.

  87. 08/28/2009Sue says:

    “(Getting ever the more closer to banning you from my site if for no other reason than your inability to maintain the thread of discussion on the path it was clearly meant…)

    The point of this thread and posting is not to talk about slavery in the Bible; the point of the thread is to show that just because something controversial is mentioned in what is otherwise considered an authoritiative work or commentary (at least by some) does not mean that the entire work should be dismissed.

    Please do tell me you have a brain in that head of yours. Then, begin using it, because you are beginning to wear out your welcome on my site.”

    Phil,

    You are the one who brought the subject up, not me. I was actually interested in what the Bible had to say regarding slavery and was hoping you would provide some information or links. Nothing more. Why do you make everything a big deal?

  88. 08/28/2009Greg says:

    Phil, while pointing out Collins mysogeny and racism may be an anachronistic argument, it does have implications for the interpretation of the natural born citizen clause in light of the adoption of the 14th amendment.

    Assuming, for a second, and only for the purpose of this argument, that the natural born citizenship clause did, at the founding, require, as Collins said, a citizen father if the parents are married, or a citizen mother if they are not.

    The Fourteenth Amendment requires equal protection under the law for all who are born here. That much we can agree on, right?

    It is one of the oldest rules of statutory construction that laws that are adopted later trump earlier laws when they conflict. For example, even though the Fourteenth Amendment doesn’t explicitly mention the bill of rights, it has been used to apply almost every single one of them to the actions of states as opposed to just the Federal government.

    Assuming Collins interpretation of NBC, then such a definition causes distinctions based on three separate classifications the Supreme Court has said must get heightened scrutiny. The Court has said that if you write a law that distinguishes based on where someone’s parents are from, like sending all people who are Japanese-American to holding camps, that has to meet the strictest scrutiny. (It’s presumed to be unconstitutional and the government has to prove it’s the only way to achieve a compelling state interest.) If you distinguish between two citizens based on their gender, or because one was legitimate and the other illegitimate, those sorts of laws have to meet a heightened scrutiny.

    At the very least, then, Collins’ interpretation would have to meet the heightened scrutiny applied to illegitimacy or gender. It would have to be the least restrictive means of achieving a substantial government interest.

    Is making children of aliens ineligible to become president the least restrictive way of limiting foreign influence on our President? Wouldn’t it make more sense to simply not vote for someone who could be bribed by foreign countries? Wouldn’t it be less restrictive to simply have aggressive disclosure laws, so that you could tell who was attempting to influence the President?

    The 14th Amendment changed the Constitution, is what I’m saying, and even if you could prove that the true interpretation of the NBC clause is the opposite of what Wong says, you’d still have a long road ahead to invalidate Obama’s election.

    A starting point would be to answer the question, what purpose would the NBC clause serve with the definition I prefer in today’s society? What else would have to change in Constitutional law in order for my view to prevail?

  89. 08/28/2009AnotherREader says:

    Phil,

    I for one would have no problem with you banning certain commentator’s on this site simply because I do not believe that they are here to present open and honest intellectual debate. They have one, and only one purpose, and that is to attack anything and everything you post as well as those who comment on this site. (Self admitted by some)

    I am open to honest and reasonable debate, but that is not what is going here at all.

  90. 08/28/20091LisHell says:

    Do these people not understand that Wong Kim Ark was a bad (wrong) decision because it failed to identify three basic principles? Those were 1) that our national laws were not derived from feudal origins, 2) that the Congressmen that had written and adopted the 14th Amendment explicitly defined what “subject to the jurisdiction thereof” meant, and 3) that the United States and China had a treaty between them regarding whether or not Chinese workers could become citizens.

    Go ahead and make that argument in a courtroom, but bring your copy of Fed. R. Civ. P. 11 so you can follow along with the judge.

    Let’s assume that SCOTUS agreed to hear a case on the merits. Justice Scalia asks about Wong Kim Ark, and you respond with the above points.

    I’m going to channel Scalia now:

    J. Scalia: Counselor, you say that the authors of the 14th amendment explicitly defined “subject to the jurisdiction thereof.” I’m not seeing that anywhere in my copy of the Constitution. Can you please point out where in the 14th Amendment that appears? Is it behind the liberty clause?

    Counselor: Your Honor, the authors did not define that in the amendment itself…

    Scalia (interrupting): Really? Where did they define it then?

    Counselor: Your Honor, they referred to it during the floor debate.

    Scalia (interrupting again): Counselor, have you read any of my opinions?

    Counselor: Umm…

    Scalia (interrupting again): Why should we care what one member of congress mentioned during a floor debate?

    Counselor: Because it shows the intent of the legislature in passing the amendment.

    Scalia: Really? I thought the text of the amendment showed the intent of the legislature. Do the senators share a hive mind? Were the Borg in power is 1868?

    Counselor: Your honor, this is a statement by the author of the amendment…

    Scalia: Who should have included it in the text of the amendment while he had the chance. Have you ever ready anythign I’ve written, counselor?

    Counselor: No sir.

    Scalia: A pity. I could use the royalties. I quote from my book, a Matter of Interpretation: In expounding this law, the judgement of the court cannot, in any degree, be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject…

    A few months later: Obama is a natural born citizen. IT IS SO ORDERED.

    Thomas dissent: A long string of insults aimed at anyone remotely connected with the case.

  91. 08/28/2009Sharon 2 says:

    Will Hoover- He seems to be the point man for the Honolulu Advertiser’s Obama stories.
    This has come up before, I think from Sue:

    http://www.politifact.com/truth-o-meter/statements/2009/jul/28/worldnetdaily/birthers-claim-gibbs-lied-when-he-said-obamas-birt/

    We have one more thing. We talked to reporter Will Hoover, who wrote a well-researched story for the Honolulu Advertiser on Nov. 9, 2008, about Obama’s childhood years in the the Aloha State. It ran under the headline “Obama Slept Here.”

    [I have found the piece entitled "Obama's Hawaii boyhood homes drawing gawkers"]

    In researching the story, he went to the microfilm archives and found the birth announcement for Obama. Actually, he found two of them, one in his Honululu Advertiser on Aug. 13 , 1961, and in the Honolulu Star-Bulletin the next day . They both said the same thing: “Mr. and Mrs. Barack H. Obama, 6085 Kalanianaole Highway, son, Aug. 4.”

    ***

    I said on another thread:

    Just doing a little checking around, maybe even being prurient. This from Atlas Shrugs:

    Pamela,
    Infidel Granny here. I am the woman who sent you the birth announcement from the Honolulu Advertiser in July 2008. You gave me a hat tip on July 23, 2008.
    I sure hope you don’t think I had anything to do with a forgery.
    The woman I spoke to at the Advertiser suggested I contact the Hawaii State Librbary for the info. That’s where I got it from just as it states in the blog on July 23. The librarian stated another woman had asked for the same thing about one week before I did.
    You might still have my email and phone number. Feel free to contact me if you like.

    Posted by: Infidel Granny | Sunday, March 22, 2009 at 07:35 PM

    I wondered why Granny was sent to the Hawaii State Library where it appeared Hoover went straight to the microfilm available at the paper. “Bystander” rightly said that it doesn’t state which archives Hoover went to. No, it doesn’t, but he very much implied that he went to the Advertiser’s microfilm. He didn’t mention the Hawaii State Library by name. The reporter who does such “excellent” research had this to say in 2006:

    Duckworth is happy to point out that she and Hawai’i-raised Punahou graduate Obama have “a kama’aina connection.”

    Both were born outside the country — Obama in Indonesia, Duckworth in Thailand — and graduated from high school in Honolulu — Punahou and McKinley, respectively.

    http://the.honoluluadvertiser.com/article/2006/Jan/08/ln/FP601080334.html

    Here is some more reporting from Hoover:

    Lum, Obama and current Punahou basketball coach Dan Hale were all “gym rats” or “rat ballers” at Punahou — “someone who practically eats, drinks and sleeps basketball,” as Lum put it.

    So, it was basketball — between classes, after school or whenever the opportunity came up. They shot hoops in the park, behind the gym or any place that suited them. Lum, Obama and Hale were all on the championship basketball team of ’79.

    For half an hour, Lum and Hale politely answered reporters’ questions about Obama next to the school lily pond before noon yesterday. He was witty, outgoing, always had that great smile, they said. He was ever the team player, but not the sort to back down if he was convinced he was right. Neither man could recall a negative thought about Obama — never saw him do drugs, or as much as smoke a cigarette. They didn’t recall him dating.

    http://the.honoluluadvertiser.com/article/2007/Feb/11/ln/FP702110360.html

    Now see this:

    http://facts.randomhistory.com/2009/01/02_obama.html

    Obama’s high school year book picture inscription thanks “Tut,” “Gramps,” and the “Choom Gang.” Choom is Hawaiian slang for “pot smoking.”g

    g Thomas, Garen. 2008. Yes We Can: A Biography of Barack Obama. New York: Feiwel and Friends Book.

    I wonder if Lum and Hale were member of the Choom Gang?

    Hoover, the point man.

  92. 08/29/2009Phil says:

    earl,

    Really, you didn’t think I could see it? You are not such the expert IT guy after all are you? Banning people who disagree with you, the hallmark of a birther fanatic. Ooooo, big bad Phil, Oooooo. Grow up.

    Unfortunately, I can only do so much in terms of what I can actually ban from you. However, since you have intentionally decided not to respect the rules of my blog, every time I see you come through, I will be recording every instance of you on my site. Your ban is not likely to be removed anytime soon.

    -Phil

  93. 08/29/2009Phil says:

    HistorianDude,

    Excuse me? Did you just try and pretend that your opinion was somehow comparable to that of the Supreme Court of the United States?

    If David does, he is certainly doing nothing any more differently that what you’ve done through your own commentary on my blog.

    As I’ve said from the beginning, opinions are like buttholes — everyone has one, and, further, everyone thinks theirs is the correct opinion.

    What’s the thing you always say about irony? Yeah, it applies here, too.

    -Phil

  94. 08/29/2009Phil says:

    Sue,

    You are the one who brought the subject up, not me. I was actually interested in what the Bible had to say regarding slavery and was hoping you would provide some information or links. Nothing more. Why do you make everything a big deal?

    Frankly, I don’t believe you, and I’ve already spent great amounts of time explaining to you and everyone else why you have shown that you’re not believable.

    You also act very similarly to earl, and you already know what I’ve done with that commenter.

    I would suggest that you stop your current course.

    You once thought so highly of the fact that I allow dissenting opinions such as yours when other sites that are more sympathetic to so-called “birthers” won’t allow that kind of dissent.

    Don’t take advantage of it.

    -Phil

  95. 08/29/2009Phil says:

    AnotherREader,

    Phil,

    I for one would have no problem with you banning certain commentator’s on this site simply because I do not believe that they are here to present open and honest intellectual debate. They have one, and only one purpose, and that is to attack anything and everything you post as well as those who comment on this site. (Self admitted by some)

    I am open to honest and reasonable debate, but that is not what is going here at all.

    Suffice it to say that the ban list has started. And because earl has decided to circumvent my ban (I really dislike the way individuals get banned on WordPress blogs, because you can’t exactly say “everyone from this domain,” else I end up banning more individuals than I’d like; too small of a ban means I have to keep watching for more identifying information and add it to the list), there’s a greater likelihood that he’ll never get off the list.

    Nevertheless, the form that holds the information required to ban people can take a lot of data, so either way, I’m prepared.

    And yes, you are correct — it’s an absolute shame that the opposition, in some instances, cannot control themselves enough to have a civilized debate. However, as anyone with children can attest, since individuals sometimes step over the boundaries, there have to be consequences.

    -Phil

  96. 08/29/2009Phil says:

    1LisHell,

    While I disagree with your conclusion of the fictional exchange, I think you are spot-on when it comes to a theoretical SCOTUS Justice basically saying, “I don’t care what anyone said in the Legislature during a floor debate. What counts is what’s law, and what opinions that we gave in retrospect on that law.”

    -Phil

  97. 08/29/2009HistorianDude says:

    It appears that once again, Phil, your arguments are intestinally blocked. It has become standard for you to trot out the “opinions are like buttholes” cliche’ whenever you have become (to extend the metaphor) logically constipated. This is what happens when you make a point of refusing to consume the intellectual fiber of reason and evidence. The rhetorical colon becomes bloated with undigested and inconvenient truths that cause such discomfort, only the facile enema of a meaningless platitude can save you.

    “Opinions are like buttholes” is just another way of saying “I can’t argue against what your saying, so I will pretend you didn’t say it.”

    Bad news, Phil. In the real world, opinions are not at all like buttholes. In the real world some opinions count and some do not. Some opinions are expert, and some are not. Some opinions are authoritative, and some are not. Some opinions are reliable (as proven by a track record of accuracy), and some are not. Some opinions are true, and yes… some are not.

    Some opinions are those of the Supreme Court of the United States… and some are not.

    Your own blog is a catalog of the failed, false and phony opinions of the Birther movement. It is a case study in the delusions of an angry and paranoid community and its impermeability to facts and their implications. Any accounting of the opinions expressed over this last year in the comments of this blog cannot help but expose in stark contrast the simple truth that the Obots generally get it right, and the Birthers do not.

    Based on the time stamps… it took Orly Taitz just one half hour for her most recent filing of a military case to be denied. One half hour!!! Who didn’t see that coming?

    Oh… of course. The Birthers didn’t.

    No… opinions are not like buttholes at all. They are more like right arms. Everybody has one, but only some will get you into the big leagues.

  98. 08/29/2009Phil says:

    HistorianDude,

    I’ll be sure to let you know when my site becomes a place just waiting to be validated by commenters such as yourself.

    Here’s a clue — don’t hold your breath for this to occur anytime soon.

    -Phil

  99. 08/29/2009Sharon 2 says:

    HD,

    The children were coming from the immigrants who were not transient.

  100. 08/29/2009Sharon 2 says:

    I’m sorry, Phil. I shouldn’t get involved, and I know guys communicate differently than females, but reading the 11:05 comment in conjunction with HD’s assertion that you two would be famous friends if you ever met face to face, well, … nevermind…

  101. 08/29/2009HistorianDude says:

    Phil:

    I’ll be sure to let you know when my site becomes a place just waiting to be validated by commenters such as yourself.

    Who was even pretending to talk about validating your site?

  102. 08/29/2009Phil says:

    HistorianDude,

    Who was even pretending to talk about validating your site?

    I’m glad you asked!

    Aren’t we all supposed to take on face value what the private, third-party web side, FactCheck.org, is promulgating RE: images of alleged HI COLBs? You’re using what is effectively another blog — another political, third-party site — to try to substantiate what is unsubstantiated: an image of a purported document that allegedly points to a real, physical document that has never been analyzed by anyone — much less forensic document experts — except for individuals at FactCheck.org.

    Consider these two scenarios:

    What if I claimed to have received an actual document, in-hand, that purported to be Mr. Obama’s Hawaiian COLB? I’d wager that you’d say, “Well, Phil, you can obviously corroborate what FactCheck.org has known all along — your document matches what they have on hand.” Do you not see the sheer disingenuousness of that line of thinking?

    What if I claimed to have received an actual document, in-hand, that purported to be Mr. Obama’s Kenyan birth certificate? I’d wager that you’d say, “Well, Phil, I think you need to get that document examined by actual experts before you begin promulgating that the document in your possession is legitimate. Why don’t you send it to someplace like FactCheck.org for verification?”

    OK, so maybe I’m waxing a bit exaggeratory RE: FactCheck in the second scenario. Nevertheless, the point still remains.

    You might as well accept everything you see on my site if you’re going to accept everything you see on FactCheck.org. The only difference between them and I is that they have more experience reporting on things and have a different education than I. Otherwise, anyone can do the research.

    -Phil

  103. 08/29/2009David says:

    Phil,

    It becomes more obvious with each comment they make that people like “HistorianDude”, “1LisHell”, “qwertyman”, “earl”, “Bob”, and “Sue” do not quite comprehend what exactly happened as a result of the American Revolution and the adoption of our Constitution. They seem to live in this fantasy world where the explicit rejection of monarchical law and law by English court precedent – with regards to our national law – never happened. Such persons have existed since the founding of our nation and have contributed to this mental ineptitude every step along the way – it’s nothing new. Except now, it’s probably taught in our government schools and “elite” universities – where these people most likely received their “education.”

    And so many people wonder why some of us say that our country is already lost. I think the evidence is becoming quite undeniable. Just look at the number of people who are incapable of learning how to – and applying – reason.

  104. 08/29/2009David says:

    HD,

    “Excuse me? Did you just try and pretend that your opinion was somehow comparable to that of the Supreme Court of the United States?”

    No. My opinion is not at all comparable. The Supreme Court has the authority of the federal government to back up their flawed reasoning and opinion. I do not. Nevertheless, my opinion cannot be wrong if constitutional law and reason are used to arrive at my conclusions. Isn’t that what our Founders claimed was true justice? Decisions based on natural law and reason?

    What you have failed to realize is that previous court’s “precedents” are not constitutional law. They are opinions. Please point out the constitutional law that makes these opinions legally binding on any future Supreme Court cases.

    And I’m still waiting for anyone to prove to me that our Revolution was fought in order to adopt the same system of laws as the British monarchy. Do you care to make that argument and cite some references for that? Or are you just going to keep claiming that we adopted English common law as our national law without any evidence of it?

  105. 08/29/2009HistorianDude says:

    Phil:

    Aren’t we all supposed to take on face value what the private, third-party web side, FactCheck.org, is promulgating RE: images of alleged HI COLBs? You’re using what is effectively another blog — another political, third-party site — to try to substantiate what is unsubstantiated: an image of a purported document that allegedly points to a real, physical document that has never been analyzed by anyone — much less forensic document experts — except for individuals at FactCheck.org.

    As usual, your misrepresentation could not be more transparently deliberate.

    No. FactCheck is not “effectively another blog.”

    It is a project of The Annenberg Public Policy Center of the University of Pennsylvania. It is led by Dr. Kathleen Hall Jamieson, the Elizabeth Ware Packard Professor of Communication at the Annenberg School for Communication and Walter and Leonore Annenberg Director of the Annenberg Public Policy Center at the University of Pennsylvania. Dr. Jamieson is a Fellow of the American Academy of Arts and Sciences and a member of the American Philosophical Society. She is the author, co-author or editor of 15 books.

    So…. in this corner we have Dr. Kathleen Hall Jamieson. And in the other corner we have…. Phil.

    Sorry… you have some work to do before you gain a fraction of the credibility, reliability and trust of FactCheck.com. I bet they even have more twitter followers than you do.

    I gotta tell you… that was almost as funny as David fantasizing that his opinion was just as good as that of the Supreme Court’s. Now I know why you defended his blissful cluelessness. You share his delusions of grandeur.

    Go figure?

  106. 08/29/2009HistorianDude says:

    Sharon 2:

    The children were coming from the immigrants who were not transient.

    That makes sense… except you already said you weren’t talking about them.

    If you still cannot see how your own argument has just swallowed itself tail first, perhaps we should just move on.

  107. 08/29/2009Phil says:

    David,

    And so many people wonder why some of us say that our country is already lost. I think the evidence is becoming quite undeniable. Just look at the number of people who are incapable of learning how to – and applying – reason.

    What’s worse is that the very legislators themselves — Speaker Pelosi and Majority Leader Reid as the primary examples — label those who question “by what authority” they make laws that appear to run afoul of the Constitution as Nazis and the like.

    It would appear that this Congress and Administration are nearly capable of labeling those of us who are constitutionalists as being extreme. Nearly capable.

    -Phil

  108. 08/29/20091LisHell says:

    And I’m still waiting for anyone to prove to me that our Revolution was fought in order to adopt the same system of laws as the British monarchy. Do you care to make that argument and cite some references for that? Or are you just going to keep claiming that we adopted English common law as our national law without any evidence of it?

    See generally the reception statutes of the 13 Colonies and all other states but Louisiana. See e.g.:

    N.Y. Const. (1777):

    [S]uch parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same.

    See also Hamilton, Federalist Paper No. 84:

    Though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the [New York] Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured.

    Id.:

    To the second that is, to the pretended establishment of the common and state law by the Constitution, I answer, that they are expressly made subject “to such alterations and provisions as the legislature shall from time to time make concerning the same”… the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself.

    (Emphasis added).

  109. 08/29/2009Phil says:

    HistorianDude,

    As usual, your misrepresentation could not be more transparently deliberate.

    No. FactCheck is not “effectively another blog.”

    It is a project of The Annenberg Public Policy Center of the University of Pennsylvania. It is led by Dr. Kathleen Hall Jamieson, the Elizabeth Ware Packard Professor of Communication at the Annenberg School for Communication and Walter and Leonore Annenberg Director of the Annenberg Public Policy Center at the University of Pennsylvania. Dr. Jamieson is a Fellow of the American Academy of Arts and Sciences and a member of the American Philosophical Society. She is the author, co-author or editor of 15 books.

    So…. in this corner we have Dr. Kathleen Hall Jamieson. And in the other corner we have…. Phil.

    Sorry… you have some work to do before you gain a fraction of the credibility, reliability and trust of FactCheck.com. I bet they even have more twitter followers than you do.

    I gotta tell you… that was almost as funny as David fantasizing that his opinion was just as good as that of the Supreme Court’s. Now I know why you defended his blissful cluelessness. You share his delusions of grandeur.

    Go figure?

    Oh, dear…

    [Raising back of hand across forehead as if to mimic a fainting position]

    I do believe that so much sheepskin is about to inundate me with such sheer awe of edumacational sophistication.

    *Ahem* Um, ah, yes… where were we?

    Oh, yes. I am supposed to act like the fact that someone has a terminal degree means that they automagically know everything that they’re talking about and that they couldn’t possibly be biased in any way, that they are 100% objective with anything they touch, and they never make mistakes.

    No, I’m not saying you’re saying that; I’m merely demonstrating the absurdity of the point of “higher education necessarily equals intelligence and/or wisdom” by being absurd.

    Excellent. I am glad that the dear Dr. Kathleen Hall Jamieson is well-pedigreed and has enough of a vocabulary and propensity to phrase a sentence that she’s written 15 books. Good on her. I wish her the best in everything she does. Really, I do.

    However, at the end of the day, it doesn’t take a Ph.D. or other doctorate to do basic investigative work. And sometimes the best work is done by those who are either aspiring post-graduate students or common individuals such as myself who simply ask the right questions.

    Sorry. FactCheck.org is “effectively another blog.” That’s really the bottom line here. However, don’t treat that as such a banal or negative thing; there are hundreds of such well-established, pedigreed blogs on the Internet today. Heck, you’d probably have one of them what with your highly-credentialed past if you really wanted to.

    Nevertheless, being pedigreed doesn’t necessarily equate to always being right or always asking the right questions.

    -Phil

  110. 08/30/2009qwertyman says:

    It becomes more obvious with each comment they make that people like “HistorianDude”, “1LisHell”, “qwertyman”, “earl”, “Bob”, and “Sue” do not quite comprehend what exactly happened as a result of the American Revolution and the adoption of our Constitution. They seem to live in this fantasy world where the explicit rejection of monarchical law and law by English court precedent – with regards to our national law – never happened. Such persons have existed since the founding of our nation and have contributed to this mental ineptitude every step along the way – it’s nothing new. Except now, it’s probably taught in our government schools and “elite” universities – where these people most likely received their “education.”

    “[A]bsent contrary indications, Congress intends to adopt the common law definition of statutory terms”
    -U.S. v. Shabani, 513 U.S. 10 (1994)

    In the past two years alone, at least 50 Supreme Court cases have referred to common law in order to resolve disputes about statutory or constitutional interpretation.

    Several major cases in the first years of the Republic also resorted to the common law of Britain to resolve disputes, such as Ogden v. Saunders, Gibbons v. Ogden, and literally hundreds of others. Blackstone, one of the lead commentators on the common law, and the author of the generally accepted definition of natural born citizen, was cited by the Supreme Court over 45 times between 1800 and 1830.

    For you to keep arguing that British common law was not and is not a huge influence on American jurisprudence is either pure ignorance or you disagreeing for the sake of disagreeing.

  111. 08/30/2009HistorianDude says:

    Phil:

    Oh, yes. I am supposed to act like the fact that someone has a terminal degree means that they automagically know everything that they’re talking about and that they couldn’t possibly be biased in any way, that they are 100% objective with anything they touch, and they never make mistakes.

    I’m not saying any of that Phil. I am saying that she is smarter than you. That she knows more than you. That she clearly has accomplished more than you. And that she has a level of credibility, reliability and trustworthiness that you probably can never aspire to.

    That you show yourself here to be an anti-intellectual is no surprise. It as a characteristic of wacky American fringe politics that Alexis de Tocqueville first wrote about more than 170 years ago. But we know that you are not also completely delusional, and do respect expertise and experience when it is convenient to you.

    For example, you are more than willing to play the “expert” card when trying unsuccessfully to discredit the reporters from FactCheck.org that authenticated the COLB. And you make such a big deal over whether or not Dr. Fukino is “qualified” to declare Obama a natural born citizen.

    So… clearly you really do understand that some people are accomplished experts, journalists, commentators and academics and others are just guys named Phil who run a right wing blog.

    So… in the spirit of pretending that you are not a total hypocrite and intellectual poltroon, I am willing to accept your response here as the product of a bruised ego, rather than an attempt to seriously assert that your blog has the tiniest fraction of credibility that FactCheck.org does.

  112. 08/30/2009HistorianDude says:

    David:

    No. My opinion is not at all comparable.

    Excellent.

    The rest of your rationalization for ending up on the losing side of the argument deserves no additional comment.

  113. 08/30/2009Phil says:

    HistorianDude,

    You almost sound like you know what you’re talking about.

    -Phil

  114. 08/30/2009Phil says:

    David,

    HistorianDude:
    David:

    No. My opinion is not at all comparable.

    Excellent.

    The rest of your rationalization for ending up on the losing side of the argument deserves no additional comment.

    Except, of course, for a comment to tell you that HD needed to comment that your comment did not deserve an additional comment.

    (This is part of what makes moderating this site so much fun!)

    -Phil

  115. 08/30/2009HistorianDude says:

    Phil:

    HistorianDude,

    You almost sound like you know what you’re talking about.

    -Phil

    That would make one of us.

    :D

  116. 08/30/2009Sharon 2 says:

    The children were coming from the immigrants who were not transient. (S2)

    That makes sense… except you already said you weren’t talking about them.

    If you still cannot see how your own argument has just swallowed itself tail first, perhaps we should just move on. (HD)

    I have no idea what you are talking about. I never said that I wasn’t talking about them. A percentage of Italians were transients and didn’t bring their wives (the source I quoted said that overall, 20 to 30 percent of Italian immigrants returned to Italy permanently).

    You wondered where the children came from, if not the transients. They came from those who were not transient (I guess there would be cases of illegitimate children from affairs of the transients, but I don’t think that was the point).

    You have lost me.

  117. 08/30/2009HistorianDude says:

    Sharon 2:

    You have lost me

    Yes. That’s why I suggested we drop it and move on.

  118. 08/30/2009Sharon 2 says:

    Okay, you were wrong on this. Subject dropped.

  119. 08/31/2009David says:

    1LisHell,

    I’m not sure whether or not you have read the documents you have cited, but perhaps you ought to read them – or read them again.

    The New York constitution specifically says:

    “…such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony…shall be and continue the law of this State…”

    That means that whatever specific laws, whether common or statutory laws of England or the laws of the colony of New York that were adopted, will remain the law so long as they are not altered by the New York legislature. It did not say that New York adopted English common law as New York state law. Nor is this evidence that the United States adopted English common law as national law.

    Also, Federalist No. 84 says nothing of adopting English common law as national law. Hamilton’s argument was about whether or not to include a bill of rights in the federal constitution. He also stated that the acknowledgement of English common law in New York had no “constitutional sanction.” Again, this is not evidence that the United States adopted English common law as our national law.

    I would suggest that you find better references if you’re going to continue making this argument.

  120. 08/31/2009David says:

    qwertyman,

    “[A]bsent contrary indications, Congress intends to adopt the common law definition of statutory terms”
    -U.S. v. Shabani, 513 U.S. 10 (1994)

    So, are we to understand that our Congress – as of 1994 – adopts the English “common law” definition of our statutory terms? And how does this prove that we adotped English common law as our national law? By the way…O’Connor was referring to the definition of “conspiracy.”

    “In the past two years alone, at least 50 Supreme Court cases have referred to common law in order to resolve disputes about statutory or constitutional interpretation.”

    They’ve referred to English “common law” as being our national law? And do you have any links or citations so that I can verify this?

    “Several major cases in the first years of the Republic also resorted to the common law of Britain to resolve disputes, such as Ogden v. Saunders, Gibbons v. Ogden, and literally hundreds of others.”

    Gibbons v. Ogden did no such thing. Ogden v. Saunders may have mentioned previous court cases, but only to demonstrate the rationale for certain opinions of the (then) current court. They were not cited as law and I did not see where the justices stated that the United States adopted English common law as our national law. If you have “hundreds” of similar examples, then don’t waste your time posting them.

    “Blackstone, one of the lead commentators on the common law, and the author of the generally accepted definition of natural born citizen, was cited by the Supreme Court over 45 times between 1800 and 1830.”

    Blackstone has a definition of “natural-born citizen“? The last time I checked, it was a “natural-born subject” that he defined – and it had to do with being born in the subjection of the Crown and having eternal allegiance to it. Are you claiming that United States citizens are born in subjection to the president and are eternally bound by an allegiance to such a person?

    Also, how many Supreme Court cases were heard between 1800 and 1830? And how many of those citations from Blackstone were in reference to adopting English common law as our national law? How many were simply reciting what was understood as reasonable interpretations of legal terminology and principles of law in general?

    “For you to keep arguing that British common law was not and is not a huge influence on American jurisprudence is either pure ignorance or you disagreeing for the sake of disagreeing.”

    And here we have a breakdown in reading comprehension and/or poor wording on your part.

    Are you arguing that British common law is (as in, currently) a huge influence on our laws today? If so, then yes, I certainly disagree with that and it is neither based on ignorance nor is it just for the sake of disagreeing. It is a matter of fact.

    Also, I have never stated that British common law was not a “huge influence” on our laws. Absolutely, British laws were influential on our founding generation. In fact, the Founders explicitly rejected many of them that had a “huge influence” on their lives and consequently, the new government they created.

    More to the point – which you have missed – is my statement that English common law was not and is not our national law. We may share certain terms and definitions in our law, but the British common law applies only so far as it is consistent with our form of government, our Constitution, natural reason, and justice.

    I am not saying that British common law was not “influential.” I am explicitly stating that it never was and is not now our national law. Do you notice the difference?

  121. 08/31/2009David says:

    HD,

    I’m still waiting for you to present the constitutional clause, or any other law, that binds all future Supreme Courts to decisions made by prior Supreme Courts.

    Or, perhaps a simple question would suffice:

    Can the Supreme Court reverse a prior Supreme Court’s opinion? How so?

  122. 08/31/20091LisHell says:

    David,
    Please define common law.

    Also, please cite any authorities (i.e. court decisions or scholarly articles) that support your contention that the United States is not a common law system.

    Gibbons v. Ogden did no such thing.

    Actually, Gibbons v. Ogden did do such a thing. See e.g. 22 U.S. 1, 49-54.

  123. 08/31/2009qwertyman says:

    So, are we to understand that our Congress – as of 1994 – adopts the English “common law” definition of our statutory terms? And how does this prove that we adotped English common law as our national law? By the way…O’Connor was referring to the definition of “conspiracy.”

    I think we’re arguing past each other at this point. And I think we’re both right here. I never said that common law was “national law,” I said that common law was and is a major influence on American jurisprudence. Here’s one example from last term:

    “The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

    While we have decided an exceptionally large number of cases interpreting this provision, most of our decisions have found more guidance in the common-law ancestry of the Clause than in its brief text.

    Yeager v. United States, 129 S. Ct. 2360, 2365 (U.S. 2009)”

    The Court looks at common law to determine the application of double jeopardy. The Supreme Court and lower courts use common law principles constantly. To say that they don’t (which it doesn’t seem like you are) is foolish.
    Take a look either at CJS on common law §14 or AmJur2nd on common law §11. A Westlaw search for the principle that common law is in effect unless superseded by statute returned over 100 cases from various federal courts, even cases as recent as last year.

    Blackstone has a definition of “natural-born citizen“? The last time I checked, it was a “natural-born subject” that he defined – and it had to do with being born in the subjection of the Crown and having eternal allegiance to it. Are you claiming that United States citizens are born in subjection to the president and are eternally bound by an allegiance to such a person?

    Ooh, good point about the difference between natural born subject and natural born citizen. Let’s see what the Supreme Court has to say about this difference:
    “if, at common law, all human beings born within the ligeance of the king, and under the king’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States in all cases in which there is no express constitutional or statute declaration to the contrary.’ “Subject’ and ‘citizen’ are, in a degree, convertible terms as applied to natives; and though the term ‘citizen’ seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, ‘subjects,’ for we are equally bound by allegiance and subjection to the government and law of the land.’”, Wong at 665.
    “All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States.” U.S. v. Rhodes (1866)
    Every state except for Louisiana and the federal government follow common law. This has been a tradition from the founding of the Republic. In recent years, more and more we’ve been abandoning common law via statute or independent American jurisprudence, but I simply disagree with you when you say that common law is not an influence on the judiciary today. I see the difference you’re making between influence and “national law,” but the fact remains that when there is no statutory definition to turn to, a judge will first look to a common law definition of a legal term or phrase, not a civil law definition.

  124. 09/1/2009David says:

    1LisHell,

    Common law definition from Georgetown University Law Library:

    “A system of law that is derived from judges’ decisions (which arise from the judicial branch of government), rather than statutes or constitutions (which are derived from the legislative branch of government).”

    You want me to cite “authorities” that support “my” contention that the federal government of the United States is not based on English common law?

    Here’s one “authority” – our Constitution.

    Need more supporting evidence? How about the legislative branch of our federal government that creates our national laws?

    Are you still going to try to tell me that our national laws are derived from English common law? Perhaps many of our states adopted common law concerning things like contracts or property disputes, but our federal government did not adopt it as national law. Our national law is our Constitution and the laws made in pursuance thereof. It is not based on court precedent by English judges.

  125. 09/1/2009David says:

    qwertyman,

    I’m very aware of what the Supreme Court said in the Wong Kim Ark decision. Unfortunately, that Court could not have been more wrong – and as I have stated many times before, it wasn’t just their take on the definition of citizenship that was erroneous.

    Nevertheless, Blackstone was very careful to say that “natural” allegiance was based on feudal principles. The difference between “subject” and “citizen” was not the issue here – it was the common law understanding of what was “natural” in the monarchical system. In that system, it was “natural” to be a subject of the lord or sovereign that ruled the territory of one’s birth and to owe that ruler of the territory a perpetual allegiance, regardless of the citizenship of the parents. The jus soli concept is what made one a “natural-born subject” under British law. It was wholly accepted as a feudal principle consistent with the laws of the British monarchy.

    Contrast that with a “natural-born citizen” which was based on natural law theory. In this case, a “natural-born citizen” was one who was entirely subject to the laws of nature alone. There was no need for a statutory law conferring the rights of citizenship because both parents were citizens of the territory in which the child was born. There was no need for a positive law because there was no possible chance that another nation could claim such a child as its citizen. “Natural” in this case was based on extraction primarily, and then on the place of birth. Natural law theory is based on the jus sanguinis model of conferring citizenship – naturally from parent to child, where the parents have the exclusive right of conferring their citizenship unto their child, not the government.

    It is two different interpretations of what is “natural,” not two similar interpretations of “subject” and “citizen.” The Court got it wrong in the Ark decision, and those who do not understand the two entirely opposing theories of citizenship from feudal and natural law principles get it wrong when it comes to our Constitution and the eligibility clause in question.

    But in a rare point of agreement, I do believe we may be saying the same thing about how common law was adopted. When it comes to the specific powers of our federal government, it is our Constitution and the laws adopted by our Congress that is our national law. Sure, some common law definitions have been adopted, but only those that are consistent with our form of government and our Constitution.

  126. 09/1/2009Anonymous says:

    David, there’s a couple of things. To answer your question, yes, the Supreme Court can decide that a case is wrongly decided. They do that by taking a case that falls under that ruling, and ruling in the opposite direction. However, the U.S. Supreme Court very rarely actually does this. In fact, even Brown v. Board of Education didn’t technically say that Plessy v. Ferguson doctorine of “Seperate, but equal” was wrongly decided. It ruled that seperate can never be equal, and therefore Plessy v. Ferguson can never apply.

    The U.S. Supreme Court is also the only one who can do it. All other courts are bound by the case law of the previous courts.

    I wouldn’t be counting on the Supreme Court reversing itself to make your case. 6 of the current justices have written favorably on U.S. v. Wong Kim Ark. In order for you to get your case, you’d have to get 2 of those justices, plus Alito, Roberts, and Sotomayor all to join you. If the Supreme Court does take a case regarding this, I expect nothing short of a 9-0 decision upholding Blackstone as the definition of NBC.

    I would not be expecting the Supreme Court to reverse itself, especially when there’s virtually no chance that the Supreme Court will reverse itself.

  127. 09/2/2009Who Are You Kidding says:

    1 Colonial charters did not permit local laws which were “repugnant to the laws of England” and reception statutes had two limitations: they dated the adoption of the common law of England from some particular year (usually the founding of the colony), and reception statutes only received “such parts of the common law of England” as had been applied in the colony before independence.

    British Statutes in American Jurisdictions, Frederick G. McKean, Jr., University of Pennsylvania Law Review and American Law Register, Vol. 78, No. 2 (Dec., 1929):

    A very large group of states recognizes amendatory English statutes prior to the fourth year of James I [1607]; in other words, in force at the time of the landing of the first English-speaking settlers in what is now the United States. The prototype of such law was enacted by the Virginia convention of May, I776, which declared the separation from British rule, framed the first constitution of the state, and ordained that ‘the common law of England, all statutes or acts of Parliament made in aid of the common law prior to the fourth year of the reign of King James the First and which are of a general nature not local to that kingdom’ should be rules of decision.

    The limitations had two implications for colonial law: 1) English rulings and statutes which post-dated the adoption year were unavailable unless they expressly referred to America (eg British nationality statutes: no references to America); and 2) English common law in its entirety was never within the jurisdiction of the colonies and thus never applied in its entirety (“such parts“), not least because the colonial courts and lawmakers never had sovereign authority over it (again, the laws concerned with nationality); if it had been slavery would have been illegal.

    When the time came to frame the US Constitution there was no federal reception of English common law: each colony had a different adoption of English common law therefore no consensus was ever reached about what a federal implementation of English common law might be. In consequence, federal usages and statutes often departed from the common law of England, even from “such parts” as had been applied in the colonies before independence. For example, the acceptance of expatriation in early US law (then anathema in England); our more restrictive transmission of nationality to the foreign born (compared to 18th century British statutes); and the inferior naturalization available to aliens in Great Britain (with religious ineligibilities and exclusion from ANY political office) with the often similarly restricted local “naturalizations” that emerged in the several colonies, when compared to the relatively liberal early US law, are indicative of the journey the Founders made from the English common law to federal law. They had traveled beyond “such parts as together did form” colonial common law, and thus beyond reception itself, into a new era of post-Independence American law.

    Not to say there was no confusion or controversy:

    Origins of Federal Common Law: Part One, Stewart Jay, University of Pennsylvania Law Review, Vol. 133, No. 5 (Jun., 1985):

    United States v. Worrall…came to the circuit court at Philadelphia in April of 1798…Worrall’s defense counsel, Alexander J. Dallas…anticipated the government’s argument, that the crime was punishable at common law; the Constitution, Dallas reasoned, contained ‘no reference to a common-law authority…’ In response, William Rawle candidly admitted that he was supporting the indictment ‘solely at common law…’ Justice Chase interrupted Rawle’s presentation… ‘The constitution of the Union is the source of all the jurisdiction of the national government…when and how have the courts of the United States acquired a common law jurisdiction in criminal cases? Now, the United States did not bring it with them from England; the constitution does not create it; and no act of congress has assumed it… what is the common law to which we are referred? Is it the common law entire, as it exists in England; or modified as it exists in some of the states; and of the various modifications, which are we to select?

    The General Common Law and Section 34 of the Judiciary Act of 1789, William A. Fletcher, Harvard Law Review, Vol. 97, No. 7 (May, 1984):

    In the years following the passage of the Judiciary Act of I789, several difficult questions about the function of the federal judiciary remained to be answered. Two questions about the role of the common law in the federal courts were particularly important. The first question was whether the general common law was intended to be federal law (a law of the United States in its national capacity) or merely the general law of the American states (a law providing the rule of decision in cases to which it applied). The second question was whether the United States could bring criminal suits in the federal courts on the basis of the general common law of crimes, or whether federal criminal statutes were necessary to such prosecutions. Both questions were eventually answered in ways that restricted the power of the federal courts: the general common law was held not to be federal common law, and the general common law of crimes was held not to constitute a federal criminal law enforceable in federal court.

    2 According to Donofrio, Obama Jr “cannot therefore be a ‘natural born’ citizen of the US” and “is not eligible to be President of the United States because…”

    aObama Jr.[']s…’birth status was governed‘ by the United Kingdom.

    bObama Jr….owed allegiance to the Queen of England and United Kingdom at the time of his birth – he cannot therefore be a “natural born” citizen…

    c…dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries.

    d….a father has every legal right in the world to have the laws of his nation apply to his son…” Leo Donofrio, December 11, 2008

    e “The common law is not our national law. Our national law is the Constitution. We do not follow the common law, we follow the Constitution, …the common law, which may also bear out that Obama isn’t eligible, at the same time provides Obama with his best argument that he is eligible…” Leo Donofrio, December 1, 2008. http://tinyurl.com/lakdoy

    What follows has been previously conveyed to Donofrio but he rejects anything which he believes undermines his case by shouting it down as “gossip” or “conspiracy theory“: he didn’t post it.

    i Section 32(2) of the 1948 British Nationality Act confines transmission of British citizenship by descent (ie the children and grandchildren of citizens not born in sovereign British territory) exclusively to legitimate children: “any reference in this Act to a child shall be construed as a reference to a legitimate child; and the expressions ‘father’, ‘ancestor’ and ‘descended’ shall be construed accordingly.”

    ii Barack Obama Sr. was lawfully married in 1957 according to the formal traditional marriage laws of Kenya, such marriages having equal status with certified, statutory marriage under the British Kenya Marriage Act 1902. The 1902 law unambiguously stipulates that any man traditionally married who married a statutory wife other than his traditional wife was a bigamist, liable to five years incarceration. This meant that Obama Sr. could only statutorily marry his traditional Kenyan wife, Kezia: he was not permitted to marry any other statutory wife. As the Marriage Act 1902 gave foreign statutory marriages equal status with local Kenyan statutory marriages, Obama Sr.’s statutory marriage in Hawaii with Ann Dunham Obama was considered bigamous by all British authorities and not legally recognized in Kenya.

    iii As Obama Sr. was bigamous under British law, British law correspondingly deemed Obama Jr. to be an illegitimate child, and as British law exclusively determined who legitimately inherited British nationality at birth, simple logic establishes that Obama Jr. was not, could never be, and never had any hope of being a British citizen by descent if born in Hawaii. Any other conclusion is illogical, wishful thinking, fanaticism, or deceitful to some end: unfortunately simple logic is apparently unable to overcome these barriers to truth in certain minds. Not least Obama Jr.’s own, judging from the bizarre claims at his website.

    iv Anyone who builds a case against Obama Jr. on the presumption that, even if he was born in Hawaii, Obama Jr. was a British citizen by descent, in terms of legal reality HAS NO CASE. To make a British citizen of Obama Jr. if he was born in Hawaii requires interpretations of BNA 1948, the British Kenya Marriage Act 1902, and the British Kenya Legitimacy Act 1931 forbidden by their explicit language and outside the realms of rational possibility. Therefore anyone who argues that Obama Jr. was a British citizen by descent even if born in Hawaii quite simply has no case, never will have a case, and is making a fool of himself if he persists in believing he has a winnable case contrary to all the evidence.

    v Now, in the article by Collins cited by Donofrio are two crucially significant passages:

    Dr Bar is equally explicit; he says: it is an almost universal rule that the citizenship of the parents determines it–that of the father where the children are lawful, and where they are bastards, that of the mother, without regard to the place of birth…

    …the same principle is affirmed by Savigny. ‘Citizenship’, says he,’indicates birth in a legal marriage where the father himself has the right of citizenship. Illegitimate children acquire by origio citizenship in the native place of the mother.

    Donofrio himself writes with regard to Collins’ citation of Vattel: “The definition of natural born citizen discussed in Vattel’s treatise was actually the definition established by the body of law known as ‘law of nations’.

    With regard to Collins’ citation of Vattel and natural born citizens in terms of the “law of nations”:

    Customary International Law as Federal Common Law, Curtis A. Bradley and Jack L. Goldsmith, Harvard Law Review, Vol. 110, No. 4 (Feb., 1997):

    Article VI [US Constitution] limits supreme federal law to those ‘Laws of the United States’ that are
    ‘made in pursuance’ of the Constitution. …the law of nations was not viewed as made by any particular sovereign source, especially not by a U.S. constitutional law-making source and especially not by federal courts. The assertion that the law of nations was part of the law of the land was likely nothing more than a mimicking of earlier statements by Blackstone, who was not, of course, referring to supreme U.S. federal law. In any event, the characterization of the law of nations as the law of the land was perfectly consistent with the law of nations’ status as general common law.

    Yet, as Collins writes, and Donofrio has earlier argued, “common law is not part of the jurisprudence of the United States.

    Furthermore, Bradley and Goldsmith write,

    In rejecting the notion of a general common law in the federal courts, the [US Supreme] Court [in 1938] explained that ‘law in the sense in which courts speak of it today does not exist without some definite authority behind it.’ [Erie v. Tompkins, SCOTUS 1938] requires federal courts to identify the sovereign source for every rule of decision. Because the appropriate ‘sovereigns’ under the U.S. Constitution are the federal government and the states, all law applied by federal courts must be either federal law or state law. After Erie, then, a federal court can no longer apply [common law] in the absence of some domestic authorization to do so…

    Given (English) common law is excluded from defining a US natural born citizen (as Donofrio readily concedes) because the common law (of England) was not received into federal law, then Vattel etc are similarly excluded from defining a natural born citizen because the common law (of nations) was also not received into federal law. Donofrio believes that the natural born eligibility requirement for the Presidency was designed to eliminate dangerous foreign associations influencing American sovereignty and policy. Where is the sovereign federal judicial or legislative instrument, as mandated by SCOTUS in 1938, supporting Donofrio’s belief that Vattel etc and the common law (of nations) must be applied to Article II(1)(5) of the Constitution? Thus far no sovereign federal authority shares Donofrio’s belief. Why? If eligibility derives from federal law, then neither ECL nor LON can apply; if eligibility derives from the Framers’ intentions, nothing has disclosed them. The internal evidence of Article II(1)(5) suggests, minimally, the requirement of birth in the US; otherwise, like Donofrio’s Grand Jury idea, it’s unenforceable.

    vi Were a sovereign federal decision to be predicated on Donofrio’s “discovery” (not least: Collins, Dr Bar, Savigny et al on illegitimacy), and we saw an apparently unconstitutional and potentially disruptive application of the common law (of nations), it would probably lead SCOTUS (ultimately) to the conclusion that Obama Jr. at birth in Hawaii (assuming this was the case) was no more governed by UK law than a natural born American, and that Obama owed no more allegiance to the Queen of England and UK at the time of his birth than a natural born American, and therefore Obama’s “birth status” was equivalent to that of a natural born American – however defined.

    vii I find it very odd that Donofrio himself does not see where his reasoning and “discovery” must eventually go. Just as curious, I also find it hard to believe that Obama Jr. has so little confidence in his ability to persuade a court of his being essentially a natural born American (assuming he really was born in Hawaii) that he would spend more than a million dollars to insure against a definitive and triumphant legal resolution of the issue. Certainly Obama doesn’t seem to have much to fear from SCOTUS.

    It seems there must be something else feared, a statute or fact, over which the judicial branch has no control.

  128. 09/2/2009qwertyman says:

    David,

    I think this right here is our key point of disagreement:

    Contrast that with a “natural-born citizen” which was based on natural law theory. In this case, a “natural-born citizen” was one who was entirely subject to the laws of nature alone. There was no need for a statutory law conferring the rights of citizenship because both parents were citizens of the territory in which the child was born. There was no need for a positive law because there was no possible chance that another nation could claim such a child as its citizen. “Natural” in this case was based on extraction primarily, and then on the place of birth. Natural law theory is based on the jus sanguinis model of conferring citizenship – naturally from parent to child, where the parents have the exclusive right of conferring their citizenship unto their child, not the government.

    I’ve yet to see a convincing argument that the Founding Fathers explicitly adopted used natural law to define natural born citizen.

    As anonymous said, you may believe that Wong was wrongly decided and reasoned, but it is extremely unlikely that the Supreme Court will reverse itself on this case given the positive comments made by a current majority of Justices.

    Further, the courts, if they ever examine this question on the merits, they would adopt the definition proffered in Rhodes and Wong. There is no chance that the courts would create a constitutional crisis and nullify a presidential election when there is a valid potential reading of natural born citizen that would not retroactively declare a former president, several former candidates, and the current president ineligible for the presidency.

  129. 10/26/2009L.A. Daneman says:

    Revealing Question:

    Who was the first Natural Born Citizen to become President of the United States? (Answer at the end of post.)

    Article II is plain enough, and the language free of vague or technical jargon.

    The presidential candidate MUST be a “natural born citizen, or a citizen of the United States, at the time of adoption of this Constitution.” U.S. Const. Art. II, Sec. 1, Cl. 4

    The reason for (a) natural born citizen, and (b) a citizen is that those meeting the 35 year old requirement in 1789 were all native born British subjects in the American colonies.

    Any ‘natural born citizen,’ born of U.S. citizens, had to wait until at least 1824 before meeting the 35-year old eligibility requirement. After all, there were no U.S. citizens until 1789.

    ANSWER: John Tyler, the 10th president, was the first natural born citizen president. He was born in 1790, about six months after the adoption. He was a native born citizen, born of a U.S. citizen father. All of the previous presidents were born of British subjects . . . just like Obama. (Actually, there is no proof, yet, of Obama even being native born!)