Blogger admits Hawaii birth certificate forgery, subverting Obama claims (Uh-oh)

Israel Insider ^ | 3 July 2008 | Reuven Koret

[David]

The footnote explained the origin of Section 1401(h). I don’t recall you commenting on that.

Your recollection is correct. I don't think (h) is relevant--it applies to "a person born before noon (Eastern Standard Time) May 24, 1934" and Obama was born long after that.

[antiRepublicrat]

The Constitution determines the Law. The Law does not determine the Constitution.

The Constitution only says "natural-born." It is up to the Congress to determine what that constitutes natural-born within any reasonable interpretation of the phrase, and we have the courts (supposedly) to keep Congress from going too astray in its determination. Given that this was the first Congress, which was full of our revolutionaries and which wrote the Bill of Rights, I tend to believe the interpretation of 1970 was what was meant.

[Raycpa]

I was referring to your comment that you were smarter than the SC clerk.

[David]

In 1960 and 61 Kenya was still part of British East Africa. The records of everything but surveys probably got shipped to London for final disposition. The Brits did that . . . .

It is positive that the Brits managed East Africa because there were good civil records.

Do you suppose those records (marriage, divorce, and birth) were shipped back at the end of the Brit occupation? I know lawyers in London--investigation would be easier and cheaper there than in Kenya. And further, less subject to interference from Kenya government employees and agents who may well view it as adverse that an effort is under way to disqualify a Kenya native born.

Note that the purported acquisition of the birth records reported in the Wayne Madsen update occurred in Kenya.

[David]

Well I did not make the comment "of course he is a citizen". But he could still be a naturalized one. His mother being a citizen would give him a leg up on that process.

Apologies if I hit the wrong address.

But note that if he were naturalized, he would be a citizen (just like Arnold) but he would clearly not be "natural born" because one of the facts you have to plead to be naturalized is that you are not natural born.

[null and void]

I tend to believe the interpretation of 1970 was what was meant.

And I agree with you. As far as I'm concerned McCain meets the full Constitutional requirements for the job.

But you and I don't get to make that call.

IF it comes to serious question, the Supremes get to make the call.

[Raycpa]

I give up. You are too smart even for the Supreme Court in 1998. So here is the opinion regarding children born abroad which provides an excellent historical summary of the origin of the laws we currently use. I will leave it to the reader who happens to follow this discussion whether you are right or the SC is right.

In any case, it is a fascinating read regarding our history about citizenship and interesting for other reasons: (Bolding highlights are mine

The first statute on the citizenship of children born abroad, enacted in 1790, stated: “[T]he children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.” Act of Mar. 26, 1790, ch. 3, 1 Stat. 104. Statutes passed in 1795 and
1802 similarly conditioned the citizenship of the child born abroad on the father’s at least one-time residence in the United States. Act of Jan. 29, 1795, §3, 1 Stat. 415; Act of Apr. 14, 1802, §4, 2 Stat. 155. This father’s residence requirement suggests that Congress intended a child born abroad to gain citizenship only when the father was a citizen. That, indeed, was the law of England at the time. See 2 J. Kent, Commentaries on American Law *50—*51 (hereinafter Kent’s Commentaries); 4 Geo. 2, ch. 21 (1731). The statutory language Congress adopted, however, was ambiguous. One could read the words “children of citizens” to mean that the child of a United States citizen mother and a foreign father would qualify for citizenship if the father had at some point resided in the country. See Binney, The Alienigenae of the United States, 2 Am. L. Reg. 193, 203—205 (1854). Or, as Chancellor Kent observed, the words might mean that both parents had to be United States citizens for citizenship to pass. 2 Kent’s Commentaries *53.

Under the 1802 legislation, children born abroad could not become citizens unless their parents were citizens in 1802, which meant that as the years passed few foreign-born persons could qualify. Daniel Webster, among others, proposed remedial legislation. His bill would have granted citizenship to children born abroad to United States-born citizen mothers as well as fathers. His effort was unsuccessful. See Cong. Globe, 30th Cong., 1st Sess., 827 (1848); F. Franklin, The Legislative History of Naturalization in the United States 271—276 (reprint ed. 1971). Instead, in 1855, Congress clarified that citizenship would pass to children born abroad only when the father was a United States citizen. Act of Feb. 10, 1855, §2, 10 Stat. 604. Codified as §1993 of the Revised Statutes, the provision originating in 1855 read: “All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.” Rev. Stat. §1993.

In these early statutes, Congress did not differentiate between children born abroad to married parents and those born out of wedlock. Section 1993, as applied, allowed transmission of citizenship to children born out of wedlock if the father legitimated the child. See, e.g., 32 Op. Atty. Gen. 162, 164—165 (1920); see also Guyer v. Smith, 22 Md. 239 (1864) (foreign born children who remain illegitimate do not qualify for citizenship). In several reported instances, children legitimated by their fathers gained citizenship even though the legitimation occurred, as it did in Lorelyn Miller’s case, after the child reached majority. See In re P, 4 I. & N. Dec. 354 (C. O. 1951); 7 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure §93.04[2][d], pp. 93—43 to 93—44 (1992) (hereinafter Gordon). But see 3 G. Hackworth, Digest of International Law 29 (1942) (noting a case in which legitimation post-majority was deemed sufficient, but maintaining that “[n]ormally the legitimation must take place during the minority of the child”).

In the early part of this century, the State Department permitted the transmission of citizenship from unwed mother to child reasoning that, for the child born out of wedlock, the mother “stands in the place of the father.” House Committee on Immigration and Naturalization, A Report Proposing A Revision and Codification of the Nationality Laws of the United States, Part One: Proposed Code with Explanatory Comments, 76th Cong., 1st Sess., 18 (Comm. Print 1939) (hereinafter Proposed Code). Ultimately, however, the Attorney General rejected the Department’s reasoning, finding it incompatible with §1993’s exclusive reference to fathers. See 39 Op. Atty. Gen. 397, 398 (1939).

Women’s inability to transmit their United States citizenship to children born abroad was one among many gender-based distinctions drawn in our immigration and nationality laws. The woman who married a foreign citizen risked losing her United States nationality. In early days, “marriage with an alien, whether a friend or an enemy, produce[d] no dissolution of the native allegiance of the wife.” Shanks v. Dupont, 3 Pet. 242, 246 (1830) (Story, J.). By the end of the nineteenth century, however, a few courts adopted the view that a woman’s nationality followed her husband’s, see, e.g., Pequignot v. Detroit, 16 F. 211, 216 (CC ED Mich. 1883), particularly when the woman resided abroad in her husband’s country, see, e.g., Ruckgaber v. Moore, 104 F. 947, 948—949 (CC ED NY 1900). See generally C. Bredbenner, Toward Independent Citizenship: Married Women’s Nationality Rights in the United States: 1855—1937, 54—59 (Ph. D. dissertation, University of Virginia, 1990) (hereinafter Bredbenner); Sapiro, Women, Citizenship, and Nationality: Immigration and Naturalization Policies in the United States, 13 Politics & Soc. 1, 4—10 (1984). State Department officials inclined towards this view as well. See L. Gettys, The Law of Citizenship in the United States 118 (1934). In 1907, Congress settled the matter: It provided by statute that a female United States citizen automatically lost her citizenship upon marriage to an alien. Act of Mar. 2, 1907, §3, 34 Stat. 1228. This Court upheld the statute, noting that “[t]he identity of husband and wife is an ancient principle of our jurisprudence.” Mackenzie v. Hare, 239 U.S. 299, 311 (1915).

The statutory rule that women relinquished their United States citizenship upon marriage to an alien encountered increasing opposition,fueled in large part by the women’s suffrage movement and the enhanced importance of citizenship to women as they obtained the right to vote. See Bredbenner 81, 95—105; Sapiro, supra, at 12—13. In response, Congress provided a measure of relief. Under the 1922 Cable Act, marriage to an alien no longer stripped a woman of her citizenship automatically. Act of Sept. 22, 1922 (Cable Act), ch. 411, §3, 42 Stat. 1022. But equal respect for a woman’s nationality remained only partially realized. A woman still lost her United States citizenship if she married an alien ineligible for citizenship; she could not become a citizen by naturalization if her husband did not qualify for citizenship; she was presumed to have renounced her citizenship if she lived abroad in her husband’s country for two years, or if she lived abroad elsewhere for five years. Id., §§3, 5; see also Sapiro, supra, at 11—12. A woman who became a naturalized citizen was unable to transmit her citizenship to her children if her noncitizen husband remained alive and they were not separated. See In re Citizenship Status of Minor Children, 25 F.2d 210, 210 (NJ 1928) (“the status of the wife was dependent upon that of her husband,
and therefore the children acquired their citizenship from the same source as had been theretofore existent under the common law”); see also Gettys, supra, at 56—57. No restrictions of like kind applied to male United States citizens.

Instead, Congress treated wives and children of male United States citizens or immigrants benevolently. The 1855 legislation automatically granted citizenship to women who married United States citizens. Act of Feb. 10, 1855, ch. 71, §2, 10 Stat. 604; see also Kelly v. Owen, 7 Wall. 496, 498 (1869) (the 1855 Act “confers the privileges of citizenship upon women married to citizens of the United States” without further action). Under an 1804 statute, if a male alien died after completing the United States residence requirement but before actual naturalization, his widow and children would be “considered as citizens.” Act of Mar. 26, 1804, §2, 2 Stat. 292, 293. That 1804 measure granted no corresponding dispensation to the husband and children of an alien woman. In addition, Congress provided statutory exemptions to entry requirements for the wives and children of men but not for the husbands and children of women. See, e.g., Act of Mar. 3, 1903, §37, 32 Stat. 1213, 1221 (wives and children entering the country to join permanent resident aliens and found to have contracted contagious diseases during transit shall not be deported if the diseases were easily curable or did not present a danger to others); S. Rep. No. 1515, 81st Cong., 2d Sess., 415—417 (1950) (wives exempt from literacy and quota requirements).

In 1934, Congress moved in a new direction. It terminated the discrimination against United States citizen mothers in regard to children born abroad. Specifically, Congress amended §1993 to read:

“Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States; but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child.” Act of May 24, 1934, §1, 48 Stat. 797.1

Senate and House Reports on the Act stated that the change was made “to establish complete equality between American men and women in the matter of citizenship for themselves and for their children.” S. Rep. No. 865, 73d Cong., 2d Sess., 1 (1934); accord, H. R. Rep. No. 131, 73d Cong., 2d Sess., 2 (1933); see generally Orfield, The Citizenship Act of 1934, 2 U. Chi. L. Rev. 99, 100—106 (1935). Congress again did not speak of children born out of wedlock, but the 1934 Act “was construed as authorizing transmission of American citizenship by descent by an American citizen mother to a child born abroad . . . out of wedlock under the same conditions as a child born in wedlock.” 7 Gordon §93.04[2][b], p. 93—42; see also id., §93.04[2][d][iii], p. 93—46.

The 1934 Act’s equal respect for the citizenship stature of mothers and fathers of children born abroad did not remain unmodified. Six years later, Congress passed the Nationality Act of 1940, which replaced the Revised Statutes’ single provision on citizenship of children born abroad with an array of provisions that turned on whether the child was born in an outlying possession of the United States, whether one or both of the child’s parents were United States citizens, and whether the child was born in or out of wedlock. The 1940 Act preserved Congress’ earlier recognition of parental equality in regard to children born in wedlock, but established a different regime for children born out of wedlock, one that disadvantaged United States citizen fathers and their children.

Under the 1940 Act, if the mother of the child born abroad out of wedlock held United States citizenship and previously had resided in the country or in a United States possession, the child gained the mother’s nationality from birth, provided the child’s paternity was not established by legitimation or a court order.2 But if the father and not the mother held United States citizenship, then the child would qualify for United States citizenship only upon legitimation or adjudication of paternity during the child’s minority. Furthermore, the child generally had to live in the United States for five years before the age of 21. The same residency requirement applied to children born abroad to married couples with only one United States citizen parent, whether that parent was the mother or the father. Nationality Act of 1940, §§201, 205, 54 Stat. 1138—1140.3

Subsequent legislation retained the gender lines drawn in the 1940 Act.The Immigration and Nationality Act of 1952 made only one significant change regarding the citizenship of children born abroad out of wedlock. It removed the provision that a mother could pass on her nationality to her child only if the paternity of the child had not been established.4 Immigration and Nationality Act, §309, 66 Stat. 238—239. In 1986, however, Congress added further gender-based differentials. The Legislature that year permitted substitution of a written acknowledgment under oath or adjudication of paternity prior to age 18 in place of formal legitimation. To that extent, Congress eased access to citizenship by a child born abroad out of wedlock to a United States citizen father. At the same time, however, Congress imposed on such a child two further requirements: production of clear and convincing evidence of paternity, also a written statement from the father promising support until the child turned 18. The requirements for a child of a United States citizen mother remained the same; such a child obtained the mother’s nationality if the mother had resided in the United States or its territorial possessions for at least a year before the child’s birth. Act of Nov. 14, 1986, §13, 100 Stat. 3657, codified as amended at 8 U.S. C. §1409. No substantive change has been made since 1986 in the law governing citizenship of children born abroad out of wedlock. http://www.law.cornell.edu/supct/html/96-1060.ZD.html

[antiRepublicrat]

But you and I don't get to make that call.

Of course not, we're all just playing armchair lawyer here. But what the Constitution says wouldn't mean anything anyway if it were a court full of Ginsbergs.

[Raycpa]

IF it comes to serious question, the Supremes get to make the call.

I am not sure they would. I think they might kick it to the House. The jurisdiction of the court over the election process for this would be questionable in my mind.

[null and void]

Too true that!

BTW, see how much trouble two of our resident legal experts are having coming to an agreement of what the actual question is here?

Never mind a resolution, they can’t quite agree on the problem.

This is why as a political issue it’s a non-starter. Very bright, committed conservative legal experts are confused.

It would be difficult to adequately explain to a typical voter, and near impossible to explain to a committed leftist.

Remember that having demonstrated inability to wrap their heads around the electoral college system, they still think “the shrub” was selected not elected!

[null and void]

The jurisdiction of the court over the election process for this would be questionable in my mind.

Then we disagree, on two grounds. I believe that deciding constitutionality is the strict provence of the Court. I also believe the court is jealous of that power and is unlikely to want to share it with the House.

Besides, the temptation to meddle in the process would just be tooooooo tempting to certain activists on the SC...

[RetSignman]

I posted my article today: ‘An Open Letter to Obama and Campaign” and was met with replies like ‘beating a dead horse’, ‘it’s old news move on’, well, I’m not going to let people with such narrow vision and their obvious neglect of what this means to The Constitution, to stop me from expressing my views.

I think this discussion will eventually be taken much more seriously by people outside of this forum and we are are on the right side of an important issue.

Obama is on a ‘Patriot Crusade’ right now and he can’t afford to keep neglecting this issue forever, he has been forced to wear the flag pin and you can bet your granny’s panties that the next time the National Anthem is played, he will have his hand firmly planted over his heart and if need be, with a tear or two.

This goes a lot deeper than just his apparent deceit or his socialist views, it goes straight to the preservation of the life blood of the guiding principles that has made this country the envy of the world...The Constitution.

[bvw]

It's an unsettled area of Constitutional understanding. But only if one unties words and phrasing from their intended purpose! Which is what the courts have been fond of doing, even the originalists.

What was the purpose? I think as Washington said in related matters -- "To avoid foreign entanglements."

The "natural born" clause is there ONLY because Washington wanted it there. He was a great man.

It is something exactly like the Obama's Dad situation he wanted to avoid. Why? He did not want to have a US President who was a Prince or a son of similar potent family.

Obama, himself, is the marker of the kind of entanglement Washington (and John Jay) wanted to avoid. How is that? When Obama went back to Kenya and campaigned for his cousin!

[Raycpa]

Perhaps this is the events that would occur:

Amendment 20 would kick in:

3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect (Hillary?)shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

The succession act provides in part"

(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President. We might have the first woman president and instead of NY, she is from California.

[null and void]

{{{{{SHUDDER}}}}}

[Spunky]

"I posted my article today: ‘An Open Letter to Obama and Campaign” and was met with replies like ‘beating a dead horse’, ‘it’s old news move on’,......

Where did you post it? Link please.

[David]

BOAC, British Overseas Airways Company, 1960 world-wide route map. It's a lot of hops. Main BOAC planes in 1960s were the Bristol Brittania and the Comet. BOAC had its first delivery of 15 Boeing 707s in 1960.

Nice map. Great work.

My memory was that the Glaskow flight was direct out of Vancouver; and that there was a one stop connection to Africa. Maybe later. An old friend of mine from opposing high school football, a trial lawyer in later life, took depositions in Khartoum in the early sixties and got there by flying to Vancouver.

Reason the second airport picture shows the change to San Francisco is that they were catching the SF flight on BOA to catch the connection to Van and Nairobi (hypothetically).

People who went to British Africa from the states took one of these routes--from the West Coast, through Vancouver.

So having done that much work, I wonder if flight passenger information is available from December 1, 1960 to January 20, 1961? Probably long gone?

[bvw]

Not much work, I just googled. That flight passenger info, though ... don’t know. But these trips were be international travel — some of which might have needed visas. Would you know? Maybe not in 1961 when Kenyan was a British colony, but after 1963 when it became independent?

[bvw]

“were be” means “would be”

[David]

So you would argue that had Barry Goldwater been elected president in 1964 that he could not have served because he was born in a U.S. territory, not a U.S. state? And ditto for John McCain if he gets elected in 2008?

If Article II says that one must be a natural-born citizen to be eligible for the presidency, and if a natural-born citizen means a citizen at birth, then logically one must look to federal law at the time the person is born in order to determine whether such person is eligible, but Congress isn’t “amending” the Constitution when it modifies the rules for citizenship at birth any more than it amends the Constitution when it admits a new state to the Union. Please note that by looking at the law in effect when the putative president is born it prevents Congress from passing retroactive laws so as to make Obama eligible or to make McCain ineligible.

In Goldwater's case, the argument was that since Arizona subsequently became part of the territory of the 48 (?) states, he had a defensible position. I could never tell whether that drift came because it was increasingly viewed that he did not have a chance or whether the lawyers who said that thought it was the correct answer.

McCain has a problem. And I don't expect it to get to the election or even the conventions. And in a mutual challenge, if the facts prove Obama is out on this issue, the temptation on the trier of fact will be to kick McCain out too to demonstrate that it is not a racially motivated or partisan decision.

Your second point is something that has been inferred but I don't think anybody has said straight up--but it is unquestionably correct in my view. Natural born, even though he wasn't when he was born but Congress in legislation changed the form of his birth? I doubt it. They could amend the Constitution and I suspect they probably will but I doubt they go all the way to the end of permitting a person born out of the country who gets to be a citizen only through a naturalization proceeding to become President but that is just speculation.

McCain would be an easy fix by the amendment process though.