Skip to comments.Judge Malihi Rules Against Plaintiffs: Says Obama Born In Hawaii Therefore Natural Born Citizen
Posted on 02/03/2012 2:19:38 PM PST by GregNH
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That is how the people who work in the "Law" industry currently define the term. Their religion requires that they worship "Precedent." To explain "precedent" I will invoke the "Thunderbirds" Air Force team where each Wingman looks to the leader for guidance. Unfortunately in 1982 the leader couldn't pull out of a dive and the rest of them followed him straight into the ground.
THAT is how our legal system works. The Wong Kim Ark precedent has a built in Mechanical failure. Get it to crash, and all subsequent bullsh*t will crash with it.
Who can say?
I carefully worded my statement to tacitly acknowledge that fact.
the definition of NBC in Minor was dicta; Ms. Minor was not seeking to become President.
Mrs. Minor was seeking for a ruling that, as a citizen of the US, the 14th Amendment forbade her State from denying her the right to vote, and argued that, if she had not been a citizen prior to the ratification of the 14th Amendment, then she had become one because of it.
But the court held that she was a natural born citizen even before the ratification of the 14th Amendment, and that that fact proved that the privilege of voting was not coextensive with citizenship, thus denying her claim. The fact that her citizenship was natural, and was not an act of naturalization effected by the ratification of the 14th Amendment, was one of the independent grounds by which the Court determined that voting was not coextensive with citizenship. That makes it a holding, and binding US Supreme Court precedent, per Ogilvie.
Second, Minor says there was no doubt that someone born in the U.S. to two citizen parents was a NBC and there was doubt as to whether someone born in the U.S. to alien parents was. That was not a definitive decision.
The holding in Minor states:
Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides [n6] that "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President," [n7] and that Congress shall have power "to establish a uniform rule of naturalization." Thus new citizens may be born or they may be created by naturalization.
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.
The Court in Minor states in its definition that "natural born citizens" are distinct from "aliens or foreigners." That's actually a very important semantic distinction. To see why, it is necessary to understand the 18th-century common law meanings of the words alien and foreigner:
According to Black's Law Dictionary, the word "foreigner" can be used in a municipal context and in an international context. In a municipal context, anyone who is not a member of a community is a "foreigner" in that community. In an international context, anyone owing allegiance to a foreign state or sovereign is a "foreigner":
FOREIGNER. In old English law, this term, when used with reference to a particular city, designated any person who was not an inhabitant of that city. According to later usage, it denotes a person who is not a citizen or subject of the state or country of which mention is made, or any one owing allegiance to a foreign state or sovereign. (Henry Campbell Black, A Dictionary of Law, First Edition, 1891, p.506)
In 2009, the Berkeley Journal of International Law published a comprehensive historical analysis of the words "foreigner" and "alien", as used in English and American legal writings during the late eighteenth century. Research by Anderson Berry found that the word "foreigner", when used in an international context, has a general meaning and a specific meaning. In the general sense, anyone who was born in a foreign country or is a citizen or subject of a foreign country is a "foreigner". But in the specific sense, "foreigner" is used in contradistinction to "alien".
...the overwhelming majority of sources available to the drafters of the judicial bill [of 1789] define an "alien" as an individual who: 1) is foreign-born, and 2) resides in a sovereign's territory other than the one where he was born. A "foreigner" is defined as an individual who: 1) is foreign-born, or more specifically, is a foreign citizen or subject, or 2) is a foreign-born individual residing extraterritorially [outside the sovereign's territory]. (Berry, pp.337-8)
"Aliens" are persons who relocate permanently to one country, while they are still citizens or subjects of some other country. Presumably, aliens intend to renounce their allegiance to their country of origin and become naturalized citizens of the country of their new permanent residence. In contrast, "foreigners" are temporary visitors who retain citizenship and permanent residence in their home country and intend to someday return to their home country.
In the general sense, the eighteenth-century meaning of "foreigner" was not limited to persons born in a foreign country. If you are a citizen or subject of a foreign country, you are a "foreigner," regardless of your residence or place of birth.
So someone who is a citizen of the United States could also be a foreigner, if he or she retains or acquires foreign citizenship. Even if born in the US, a US citizen could be or become a foreigner simply by also having or later acquiring foreign citizenship. A US citizen—even from birth—could also have foreign citizenship from birth—either by having been born outside the US, or by having even one parent who is an alien or foreigner. So the fact that the Supreme Court has defined "natural born citizens" as distinct from "aliens or foreigners" excludes anyone from qualifying as a "natural born citizen" who has foreign parentage (because of the jus sanguinis principle of natural law, which by definition of natural law applies regardless of the laws of any country,) anyone who has foreign citizenship, or anyone who was not born in the United States.
Starting with the very next sentence following the first quote from the case given above, the Court then continues to discuss the fact that yet other persons could be citizens who don't qualify as "natural born citizens." To understand the message the Court intends to convey, it is important to remember that the issue on which the court was focusing was whether or nor the petitioner was a citizen regardless of the first sentence of the 14th Amendment. The definition of "natural born citizen" was relevant solely because a) Article II, section 1 establishes "natural born citizen" as the strictest class of citizenship, and b) anyone who qualifies as a "natural born citizen" necessarily qualifies as a citizen:
Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts [regarding citizenship, but not regarding "natural born citizenship"], but never as to the first [because anyone who qualifies as a "natural born citizen" is a citizen beyond dispute]. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words "all children" are certainly as comprehensive, when used in this connection, as "all persons," and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.
The Court notes in passing that those born in the United States, regardless of the citizenship status of their parents, may nevertheless qualify as citizens. The fact it uses the word "citizens" in that clause instead of using the phrase "natural born citizens" categorically falsifies any claim that the Court intended to convey the idea that anyone born of non-citizen parents might possibly be "natural born citizens." The doubt the Court was expressing concerned whether or not such persons might even be citizens at all.
The Minor Court provided no name for the class of citizens "born within the jurisdiction without reference to the citizenship of their parents," but did refer to them using the general term "citizens." Based on the legal principle of interpretation known as generalia specialibus non derogant ("the general does not detract from the specific,") the use of the general term "citizen" must not be conflated with the use of the specific term "natural born citizen," unless the text makes it explicit that such was intended.
The text in Minor not only states no such thing, it in fact states precisely the opposite. In addition to defining "natural born citizen," the opinion also separately defines the term "citizen," giving a different definition:
The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association
For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words subject, inhabitant, and citizen have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more. [pg. 166]
It cannot be the case that any court that provides one definition for "citizen" but a different definition for "natural born citizen" intended to use those terms interchangeably. Nor can the fact be challenged that the Minor decision defines the term citizen as 'member of a nation, and nothing more,' but defines natural born citizen as 'born in the US, to parents who were US citizens—distinguished from aliens and foreigners.' The two definitions are not the same at all. One is general. The other is specific. Per generalia specialibus non derogant, the general must not detract from the specific.
In the above quoted paragraphs from the Minor opinion, the Court explicitly distinguishes two classes of native-born citizenship:
There is also obviously (at least) yet a third class: Persons naturalized after birth, who cannot be "native born."
The Minor Court's opinion doesn't explicitly say whether the second class—those who are native-born but have at least one parent who was not a citizen—are naturalized citizens. There are and were laws that define such persons as citizens—for example, the 14th Amendment. But unless such persons are citizens by natural law, and not just by Constitutional or statutory law, they cannot be natural-born by definition.
But in any case, the Minor decision categorically excludes anyone who can be considered an alien or foreigner from being a natural born citizen. And, as shown above, anyone not born in the US, or anyone who has foreign citizenship, is either an alien, a foreigner, or both. And so are their children, because the natural law citizenship principle of jus sanguinis endows any such children with whatever citizenship either one of their parents has—unless the parent has renounced and relinquished any and all foreign citizenships, as all those who become naturalized US citizens are required to do. So that excludes anyone with an alien or foreign parent, where such parent has not become naturalized as a US citizen before the child's birth, from being a "natural born citizen" of the United States.
Third, several earlier Supreme Court decisions (see the footnotes in Judge Malihi's decision) had said that anyone born in the U.S. was a NBC, regardless of parentage.
Fourth, later cases are very much to the contrary; see Wong, and the cases cited in the Congressional Research Service's report.
You must not have read the text of those cited opinions. Either that, or you have the mistaken belief that:
Fifth, and most importantly, what you or I think is "null and void" doesn't matter; as I said above, "the law" means what the courts will rule tomorrow, and no court will say anything except that "Natural Born Citizen" means a citizen who wasn't naturalized.
Now that has some truth to it. However, the odds always favor that the courts will follow stare decisis—and the more prestigious the court, the more that that is true.
I don’t think it’s what they believe that is the reason they are silent. They’re all chickens***. They know. They know.
This is a ruling by ONE Judge.
If we do not like his ruling, then it can be appealed to a higher Court.
This battle may be lost, but THE WAR CONTINUES!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
I don't doubt this. One of the fogbow crew was posting something about "you won't like the outcome" as if he already knew what was going to happen several days earlier. There was a similar incident when Montana (or maybe another state) was looking at changing their ballot requirements to force the submission of a long-form BC to get on. He was citing something that he insisted had happened but was not posted at the site where it would have been posted.
Had the ALJ given him cover, I think the Secretary of state would have supported a decision to keep Obama off the ballot. Since the ALJ didn't, it will be the SOS out there all by himself. I very much doubt he will decide to endure as much bile and vitriol as will be directed at him.
It would be funny, and actually appropriate, to see Kemp throw Judge Malihi under the bus. "Judge Malihi was supposed to perform the simple of duty of presenting me with Findings of Fact and Conclusions of Law. He has failed in both circumstances, opting to express his own personal agenda. We are seeking his removal from office and will deny Obama to be on either the primary ballot or general ballot for lack of evidence."
“Any argument that someone is wrong because many others disagree with them”
It’s not that you’re wrong because just any many others disagree with you. It’s that constitutional law professors and judges disagree with you. You’re not an attorney, let alone a law professor or a judge, right? It’s more likely that it’s your opinion of who is a natural born citizen that’s mistaken not theirs. Who is more likely to be more skilled at interpreting the Constitution properly? You or the judges of the Indiana Court of Appeals?
“Aunt in Boston”
The aunt has been a legal resident with permission to work for two years.
I forgot to respond to that clause in my first reply.
Actually, I agree with you. "Natural citizen" and "naturalized citizen" are mutually exclusive. You must be one or the other. You cannot be both. Nor is there any third option.
So how does that apply to the 14th Amendment?
No one argues that all natural born citizens are not also native born citizens. The dispute is about whether the reverse is true—whether all native born citizens are also natural born citizens.
Those born outside the US to parents who were US citizens are citizens from birth—by statute. So they are also "native born," because they are citizens from birth. And the Supreme Court has never ruled that those born outside the US are "natural born citizens." Nor can it be that the 14th Amendment defines anyone born outside the US as citizens at all. That proves that not all native born citizens are also natural born citizens. The terms are not perfect synonyms.
So if Wong Kim Ark did hold that "native born" = "natural born," then even those born outside the US to US-citizen parents would be "natural born citizens." But if that's the case, then it's a violation of the Law of Non Contradiction, because it would force "natural" born to include those who are naturalized. But as we both agree, "natural" and "naturalized" are mutually exclusive terms.
The dispute is also about whether any and all who qualify as citizens per the 14th Amendment are natural citizens, or whether some are natural but others are naturalized.
Anyone who was alive but not a citizen when the 14th Amendment was ratified, but became a citizen at that moment, was not a citizen from birth. So that proves that not everyone made a citizen by the 14th Amendment was a native born citizen.
The text of the 14th Amendment proves the same point: The 14th Amendment's citizenship clause defines both a) those born in the US and subject to its jurisdiction, and b) those naturalized in the US and subject to its jurisdiction, to be citizens of the US, and does so using a single sentence with a single phrase that is the subject of the sentence and a single phrase that is its predicate. The subject phrase is of the form "<A> and <B>", and the predicate phrase is "are citizens of the United States." That single predicate phrase, "are citizens of the United States," must intend to apply that exact same meaning of the word citizens to both noun phrases in the conjunctive phrase that is the subject of the sentence, since it's but one predicate phrase applied to but the one conjunctival phrase that is the subject of the sentence. Therefore, the semantics of the word citizens in the 14th Amendment must encompass both those born in the US (and subject to its jurisdiction) and those naturalized in the US (and subject to its jurisdiction.) That is flat-out impossible unless the intended semantics of the term citizen in the 14th Amendment is that of general citizenship, and is not intended to signify any other, more specialized meaning.
So yes, all citizens are either natural or naturalized. The 14th Amendment is declaratory of the citizenship of all those who are natural citizens without needing the Amendment to be such, but who also satisfy the citizenship rules specified by the Amendment. But for those who would not be citizens but for the 14th Amendment, it makes them citizens by naturalization—by definition of naturalization, which is to deem or declare someone a citizen by positive law enacted by any political entity (such as a statutue, or a Constitutional Amendment passed by Congress and ratified by the State legislatures.)
The Aunt is an illegal alien who was ordered to leave the country.
Shes a fraud. She stole from taxpayers.
People like her and your ilk are destroying this country.
I predict there’s a zot in your future.
The court used a definition of citizenship in her favor that would have made her eligible to run for president. Had this been Obama, they couldn't have done that because he was born in a class that had doubts and did not meet the characterization of natural-born citizen. Think for a moment. Had Virginia Minor sought the right to run for president instead of a right to vote, how would the decision be any different??
No one has to challenge their expertise. The burden to establish that they qualify as experts lies with the attorney calling them. The standards by which that burden is met are typically jurisdiction-specific. In this case, Orly made no attempt to establish that her witnesses were experts. Based on past performance, I would suspect that is because she doesn't understand that she has to. In any event, having dealt with this issue numerous times myself, I can say it is unlikely any court would accept the experience of the witnesses proffered as meeting an expert standard.
True, there is no iron-clad evidence that Barry was adopted by Soetoro, but it has been reported his half-sister Maya said her father had adopted Barry. There are also the Soetoro divorce papers of 1980 in which it is stated there are two children - one child over age 18 and therefore not requiring court consideration regarding support; the other a minor child who did require court consideration regarding support. Surely not indisputable evidence, but just as surely indicative that Lolo Soetoro had some kind of legal relationship with Barry. If Soetoro didn’t, there would be no reason for him to be mentioned in the legal documents as one of the children of the divorcing couple.
Although step-children in our country do commonly go by the step-father’s name without having been adopted, we don’t know that such would have been allowed in Indonesia, which at the time was in horrific political upheaval. Lolo could very well have been lying, but in the INS docs re: Lolo which were released last year under an FOIA request, he was trying desperately to get the INS to allow him to remain in the US. He was afraid of returning to Indonesia because of the political minefield there, and because the type of work he did [oil industry] would require him to be under direct control of the government. Since Indonesian law was that to attend Indonesian government schools children had to be Indonesian citizens, and considering the political climate, it seems unlikely Soetoro would risk repercussions to himself by doing something illegal. It would seem he’d be careful to not put at risk his chances of being allowed to return to the US for further schooling.
As for Barry having an Indonesian passport - I agree it was most likely the case, and that the 2008 ‘tampering’ of his passport file was part of his concerted effort to rid that file of the incriminating evidence of his coming back into the US on an Indonesian passport.
Another thing about Indonesia - it’s my understanding [can’t cite the Indo. constitution] that one cannot have an Indonesian passport without being an Indonesian citizen. the problem for Barry regarding potential scenario is that Indonesia did not permit dual citizenship. You couldn’t be an American citizen and possess an Indonesian passport. IF that is the scenario of Barry’s hidden past, the only way he could now be a US citizen is by having been naturalized after attaining legal age.
One thing IS for certain: it’s one huge, stinking mess of lies and of “potential scenarios” that anger and frustrate us no end!
You’re very quick and bright, and I always look for your comments.
The holding of Minor was that the 14th Amendment did not give women the right to vote. Therefore, the discussion of citizenship was not essential to the result-- Ms. Minor was found to be a natural born citizen, but not entitled to vote because of her gender. Had she been found to be a citizen but not a natural born citizen, she would have likewise not been eligible to vote; had she not been a cittizen at all, she would have not been eligible to vote. The discussion of her citizenship was not essential to the holding, and is therefore dictum.
That's not just me saying that; the court in Wong Kim Ark said the same thing; the court in Ankeny said it; Judge Malihi said it; the case in Virginia last month said it. No case after Minor has ever said that the discussion of citizenship in Minor is a holding or is binding precedent.
As I said above, "the law" is not what people on an internet forum say it is; the law is-- by definition-- what the courts say it is. No court will ever hold that someone born in the United States to parents lawfully here (whether as citizens or legal aliens) is not a natural born citizen unless their parents were foreign diplomats. You can take that to the bank.
That is correct.
If someone is born a U.S. citizen, they cannot, under U.S. law, lose that citizenship other than by a voluntary renunciation after age 18. Indonesian law can say that he lost his U.S. citizenship, his father and mother could have renounced his citizenship for him, he would still be a U.S. citizen under U.S. law.
LOL! Thanks for a much-needed smile! And be sure to squint when you hit that sunshine!
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Please look at the CONNECTION of Fogbow Atlanta attorney Jill Pryor with ‘kinfolk’ Michael Malihi. I think you will find your answer.
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