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Posted on 02/04/2012 3:17:29 PM PST by rxsid
"A Rat Called Tandem.
[UPDATED: 2:12 PM - Cindy Simpson's top headline article at American Thinker is also a must read. Excellent analysis as usual.]
What happened in Georgia is what we refer to in poker as, “playing to a script”. It’s like something out of a Frank Capra movie. The citizens head to court to fix a Constitutional wrong, and the State court appears to be tough on the feds, standing up to them bravely flexing their muscles in the name of their citizens. Nice script. But it’s so very transparent.
Everyone needs to read Mario Apuzzo’s in-depth exposure of the blatant flaws in Judge Malihi’s holding, wherein you will experience a brilliant researcher exposing a truly defective legal opinion.
I only have a little bit to add. My remarks will be brief, and focused upon Judge Malihi’s sad failure to address the issue of statutory construction, which I explained thoroughly in my last report, The Dirty “little” Secret of the Natural-Born Citizen Clause Revealed.
Malihi’s opinion directly contradicts his own recent opinion denying Obama’s Motion to Dismiss, wherein Malihi relied exclusively on statutory construction. However, yesterday, Malihi held that the 14th Amendment had to be read “in tandem” with Article 2, Section 1.
But doing so would render the natural-born citizen clause to be inoperative, in that 14th Amendment citizenship, and nothing more, would be the requirement to be President. This would mean that the natural-born citizen clause is rendered superfluous. Here’s what Chief Justice Marshall said about this issue in Marbury v. Madison, 5 U.S. 137 (1803):
“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.” Id. 174. (Emphasis added.)
And here’s what the U.S. Supreme Court held as to statutory construction in the seminal case on this issue, Morton v. Mancari:
“Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. See, e. g., Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961); Rodgers v. United States, 185 U.S. 83, 87 -89 (1902).The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. “When there are two acts upon the same subject, the rule is to give effect to both if possible . . . The intention of the legislature to repeal `must be clear and manifest.’ ” United States v. Borden Co., 308 U.S. 188, 198 (1939).” Morton v. Mancari, 417 U.S. 535, 550-551 (1974).
There is no “clearly expressed intention” to deem 14th Amendment citizens “natural born”. Those words were intentionally left out of the 14th Amendment. And Judge Malihi has simply overruled the U.S. Supreme Court by suggesting that the general citizenship clause of the 14th Amendment governs the specific requirement to be President in Article 2, Section 1.
Both clauses are not given separate effect by Malihi. His opinion holds that the 14th has the exact same effect as the natural-born citizen clause, while the 14th Amendment does not include the words “natural born Citizen”. Persons claiming citizenship under the 14th Amendment are deemed to be “citizens”. Malihi has added the words “natural born” into the Amendment. This is absolutely forbidden, according to Malihi’s own opinion in the Motion to dismiss, wherein he held:
“In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning.’ Six Flags Over Ga. v. Kull, 276 Ga. 210, 211 (2003) (citations and quotation marks omitted). Because there is no other ‘natural and reasonable construction’ of the statutory language, this Court is ‘not authorized either to read into or to read out that which would add to or change its meaning.’ ” (Emphasis added.)
Yeah, dude. Whatevah. Such lack of consistency, just weeks apart, from the same jurist… simply reeks. Now he’s putting words into the 14th Amendment, when just two weeks ago he said that was forbidden.
You are absolutely incorrect.
Whenever I see a poster be so incorrect about something so basic in British law- it calls into question every other thing they have said about Obama and NBC.
IF Obama was born a bastard in the US (and he was according to the facts that are presented) he could not be a British citizen. That is a FACT as per the law of Britain at the time of his birth. There are no laws on the books that I have found that would retroactively and automatically have made him a citizen.
He could have APPLIED for citizenship and asked for a ruling based on later laws and special dispensation and he MIGHT have been approved - or he might not have been.
Obama may have been a bastard child according to United States law. However, the United Kingdom accepted polygamy claims in Kenya and its citizens as it was typical of its colonial rule to accept localized culture.
Even today, Polygamy in Kenya is legal. Your argument fails to take into account that U.K. citizenship is separate from U.S. citizenship.
Sorry, Mr. Obama always was, and still is a citizen of the United Kingdom.
False on all counts, IMO:
• See Kenya Marriage Act of 1902 paragraph #49:
49. Whoever contracts a marriage under this Act, being at the time married in accordance with native law or custom or in accordance with Mohammedan law to any person other than the person with whom such marriage is contracted, shall be guilty of an offence and liable to imprisonment for a term not exceeding five years.
kenyalaw.org/family/statutes/...?file=The+marriage+act.pdf
• BNA of 1948 Legitimation of persons born out of wedlock:
“(2) Subject to the provisions of section twenty-three of this Act, 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.”
http://www.uniset.ca/naty/BNA1948.htm
• The Illegality/Un-Constitutionality of Dual Citzenship
Sunday, December 27, 2009 10:00:02 PM • 28 of 28 Seizethecarp to PugetSoundSoldier
“Yet you can be granted citizenship by other nations, and it will be accepted. So is the problem with dual citizenship or not?”
NBC is a condition of birth which is impervious to foreign claims. If a person, after the age of majority undertakes to acquire and is granted citizenship of another country, that has nothing to do with and does not negate NBC status. “The problem” with Obama is that his stated biography (assuming a non-bigamous marriage of his parents) with his UK subject father would make Barry “governed by the BNA of 1948” and thus a dual UK-US citizen at birth. Barry would be a native born citizen (born on US soil if, indeed, he was) but not a natural born citizen, according to some constitutional scholars.
If Barry's parents had a bigamous marriage due to his father's previous Kenya marriage to Kezia, Barry would be the illegitimate son of a legally single US citizen mom and would be NBC under US law because he would not be a dual citizen. The BNA of 1948 does not pass citizenship to illegitimate children.
If Barry were actually born in Kenya and his HI vital record came about as a result of a fraudulent report of a home birth or some sort of post-birth amendment (so far hidden by HI vital records due to Barry refusing a release) Barry would not be NBC or even a US citizen due to the age of his mother under US law at the time.
Perhaps this link will help you begin to understand the issue
Nevertheless, marriage to Dunham is irrelevant to Obama's citizenship. Based on citizenship law in the United Kingdom (Part II of the Nationality Act, 1948):
5.—(1) Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth
Yes, Gray admitted it straight up in his 1898, WKA opinion.
Gray ignored the meaning and intent from the authors who wrote the 14th Amendment that it didn't mean a thing to him or to his flawed ruling.
What do we call that these days? Right, it is called 'judicial activism' and writing laws from the court bench. A BIG no no.
Lord have mercy, you TRULY do not understand how to read the law.
Did you bother to read the link that I gave you.
You totally misunderstand that Kenyan law.
Maybe this will help clear it up:
http://www.kenyalaw.org/
“Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable during the continuance of such marriage of contracting a valid marriage under any native law or custom, but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any native law or custom, or in any manner apply to marriages so contracted.”
(2) Subject to the provisions of section twenty-three of this Act, 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.
Now, in case you don’t understand, this means the child cannot be a bastard except if someone is legitimated through the provision in section 23.
No. Tribal marriages were legal and binding and you cannot play mix and match between the three legal types of marriage. There is no evidence that BHO Sr. was ever a Muslim (he was a professed atheist socialist) or that any of his three marriages were Muslim or that any of his wives were Muslim. Only multiple Muslim marriages would be permissable and only within Kenya...not in HI where bigamy of any kind is illegal.
You quoted from the 1948 BNA:
"5.—(1) Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth"
But this does not apply to Barry if his parents bigamous marriage made him illegitimate. UK does not recognize any marriage that was illegal where performed such as alleged Muslim plural marriages if performed where illegal.
Under the 1948 BNA only legitimate children of a UK subject father automatically become UK subjects at birth. You appear to have missed the following passage from my prior comment which would exclude little Barry from the passage you quoted:
“(2) Subject to the provisions of section twenty-three of this Act, 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.”
http://www.uniset.ca/naty/BNA1948.htm
If a child is born out of wedlock within the UK and its territories, but the father was an alien of the UK, then your argument applies. You are missing the key concept in section 23, which discusses legitimated children.
Do you understand the difference between legitimate and legitimated?
No. None of that applies to Barry. A legitimated child is legitimated under section 23 if the UK subject father marries the mother of the child AFTER the child is born. Prior to a post-birth marriage, such a child was illegitimate and NOT a UK subject at birth.
There is zero evidence that BHO Sr. and Stanley Ann were married anywhere, bigamously or not, Muslim or not AFTER Barry was born...and which could have legitimated him under section 23, IMO.
Yes, I do. But apparently you don’t.
So we have either two things here - or BOTH
You are woefully unable to understand how to read the law and/or you are trying to obfusicate.
Your posts have to be dismissed.
And you wonder why birthers get such a bad rap??? Because of posts like yours.
Gray ignored the meaning and intent from the authors who wrote the 14th Amendment that it didn't mean a thing to him or to his flawed ruling.
What do we call that these days? Right, it is called 'judicial activism' and writing laws from the court bench. A BIG no no.
Absolutely. My current theory regarding the Gray court is that they were Republicans in the Ascendency, and "waving the bloody shirt" was a common practice in those days. Gray wanted to ram the Democrat's racism back down their throats, and when given the opportunity, he couldn't resist himself and he just went a little too far. (depending on how you interpret the Wong Kim Ark decision.)
I will point out that Justice Black, in Duncan v Louisiana explicitly says to use the opposite approach of Justice Gray.
I have read and studied this article extensively, including the historical references, but am compelled to add that, in my view, it has completely failed to refute the inferences and arguments that I suggested in my Adamson dissent . Professor Fairman's "history" relies very heavily on what was not said in the state legislatures that passed on the Fourteenth Amendment. Instead of relying on this kind of negative pregnant, my legislative experience has convinced me that it is far wiser to rely on what was said, and, most importantly, said by the men who actually sponsored the Amendment in the Congress. I know from my years in the United States Senate that it is to men like Congressman Bingham, who steered the Amendment through the House, and Senator Howard, who introduced it in the Senate, that members of Congress look when they seek the real meaning of what is being offered. And they vote for or against a bill based on what the sponsors of that bill and those who oppose it tell them it means.
Original intent? Whodda thunk? :)
If you can explain to me the legal differences between legitimate and legitimated, then you have a point. And if you understand Kenyan marriage rituals with regards to British citizenship law without reaching out to “armchair internet” definitions, touché for you.
Otherwise, your lack of legal and cultural understanding of British citizenship law is evident by your veil insults. Cite case law. Cite legislature. Cite barrister interpretations. Cite anything you want. By all means, knock yourself out.
I have seen this sort of behavior amongst several women here on Free Republic. They simply are angry other cultures allow men to pass citizenship to their legitimate, illegitimate, and bigamous children. They get angry the framing fathers did not allow bastard children to be president. They are still angry the world is not equal and they want their opinion to be known by the roar of their voices. Are you one of these members?
No. None of that applies to Barry. A legitimated child is legitimated under section 23 if the UK subject father marries the mother of the child AFTER the child is born. Prior to a post-birth marriage, such a child was illegitimate and NOT a UK subject at birth. There is zero evidence that BHO Sr. and Stanley Ann were married anywhere, bigamously or not, Muslim or not AFTER Barry was born...and which could have legitimated him under section 23, IMO.
This argument might hold water if it were not for the Obama/Dunham divorce decree from the state of Hawaii. That alone is enough evidence in any court in the U.S. or U.K. they were perceived to be married by the state of Hawaii, and that the child was born legitimately in the United States.
The Nationality Act of 1948 is quite clear. Section 23 only applies to children who are not legitimate based on the jurisdiction where they are born. As Obama Jr. was supposedly born in the United States and the marriage was perceived to be binding in the United States at the time of birth, the BNA would consider him a British citizen. Had Obama Jr. been born in Kenya, this would be quite a different story.
Putting it in laymen’s terms: If the U.S. says Obama was legitimate, the U.K. honors this for citizenship as Obama Jr. was “born in Hawaii”, a jurisdiction of the U.S.
If this is enough to make anyone’s head hurt, it is quite clear the Framing Fathers did not want to deal with this messy situation. Hence the Natural Born Citizen clause in Article II.
“The Nationality Act of 1948 is quite clear. Section 23 only applies to children who are not legitimate based on the jurisdiction where they are born.”
IIUC, your interpretation of Section 23 is wrong. There is nothing in it that distinguishes illegitimate children of UK father NOT being UK subjects whether born in or out of UK jurisdiction.
Also, the BHO Sr. INS files clearly show that the US Government strongly suspected and in fact INS acted on a clear belief that BHO Sr. was a bigamist and the SADO claimed (but not ever proved) marriage was a sham and moot explicitly due to BHO Srs. known prior Kenyan marriage when the INS BOOTED him from the USA. The claim of a marriage in a divorce proceding does not PROVE that the marriage ever occured.
So contemporaneous proof that the US gov’t acted on a belief that the BHO Sr and SADO marriage was a bigamous and moot sham in no it the GA ALJ court record and was uncontested due to Barry's failure to appear.
Are you sure? It states right in Section 23:
(2) A person shall be deemed for the purposes of this section to have been legitimated by the subsequent marriage of his parents if by the law of the place in which his father was domiciled at the time of the marriage the marriage operated immediately or subsequently to legitimate him, and not otherwise.
I am interpreting the law based on what the government says the interpretation is. Take note:
1.9 -- An illegitimate child should be regarded, for the purposes of s.47(1) of the 1981 Act, as having been legitimated by the subsequent marriage of the parents if, by the law of the place in which the father was domiciled at the time of the marriage, the marriage can be regarded as having legitimated the child. Note, though, that s.47(1) only refers to legitimation through subsequent parental marriage - it does not extend to those who are "legitimated" by means of legislation passed by another country (see, for example, 5.1.2 below). Where a child, born illegitimate of a British citizen father, has been legitimated by operation of law rather than by the subsequent marriage of his or parents, it may be appropriate to consider registration under s.3(1) of the Act.
- http://www.ind.homeoffice.gov.uk/sitecontent/documents/policyandlaw/nationalityinstructions/nisec2gensec/legitimacy?view=Binary
The document goes a step further stating courts could not nullify polygamous marriages until the Matrimonial Proceedings Act of 1972 was passed. By then Obama and Dunham were divorced:
2.2.4.1 The courts did not have jurisdiction to grant a decree of nullity in respect of polygamous [the term includes potentially polygamous] marriages until 29 June 1972, when the Matrimonial Proceedings (Polygamous Marriages) Act 1972 was enacted. However, the effect of this Act is to allow the courts to exercise jurisdiction in respect of any polygamous marriage, irrespective of the date on which it was contracted.
I believe we are mincing concepts here based on what we know based on what we suspect, regardless as to what is the truth. Here is what we know:
Here is what we do not know:
Until evidence of what we suspect comes to light, this is all the information we have to use at our disposal.
The judge did not rule the natural born citizen clause inoperable at all.
It still applies, as it always has, to those citizens who were not “natural born” but “naturalized”.
Naturalized citizens are not eligible for the Presidency and neither are non-citizens.
I didn't know the coat of arms of the Dauphin of France had a Dolphin on it! That makes Mark Twain's joke about the “Dolphin of France” even funnier!!!!!
IIUC, the BHO Sr. SADO marriage was absolutely NOT a polygamous marriage IF performed in HI because the Kenya Marriage Act of 1902 did not recognize marriages that were illegal where performed due to bigamy. Under the Kenya Marriage Act, mixing marriages from three separate marriage codes was illegal and a bigamous marriage is moot in the UK and US.
IIUC, legitimation can only occur via a post-birth marriage of the parents which converts a child that was illegitimate at birth (and thus non-UK subject at birth) into a “legitimated” post-birth UK subject. There is no evidence of a post-birth marriage of SADO to anyone but Lolo Soetoro, IIUC.
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