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New Jersey Obama Ballot Challenge Appealed to Appellate Division: Oral Argument Scheduled
BirtherReport.com ^ | May 15, 2012 | Mario Apuzzo

Posted on 05/15/2012 6:45:26 AM PDT by Seizethecarp

On Friday, May 11, 2012, I filed with the New Jersey Appellate Division on behalf of Nicholas E. Purpura and Theodore T. Moran their appeal of the New Jersey Secretary of State’s final decision to permit presidential candidate Barack Obama on the New Jersey primary ballot.

On Monday, the Court issued an order providing that the Court, sua sponte, accelerates the appeal. Finally, the Court scheduled telephonic oral argument for Wednesday, May 30, 2012, at 1:00 p.m.

In our appeal, we will be arguing that:

1. The Administrative Law Judge (ALJ) and Secretary of State (SOS) erred in finding that Obama, because he does not have to consent to his nominating petition, does not have any legal obligation to provide any evidence to the New Jersey Secretary of State proving who he is, where he was born, and that he is constitutionally eligibility to occupy the Office of President in order to be placed on the New Jersey primary election ballot.

2. The ALJ and SOS erred in finding that a “natural born Citizen” includes any child who is born in the United States and “subject to the jurisdiction thereof,” regardless of the citizenship status of the parents.

3. The ALJ and SOS erred in finding that Obama was born in Hawaii, for there is no evidence in the record supporting such a finding.

4. The ALJ and SOS erred in finding that Obama was born in Hawaii and therefore as a matter of law he is an Article II “natural born Citizen.”

(Excerpt) Read more at obamareleaseyourrecords.blogspot.com ...


TOPICS: Conspiracy; Politics
KEYWORDS: ballotchallenge; certifigate; naturalborncitizen; obama
The NJ Appeals Court has accelerated the ballot appeal, something they didn't have to do if they didn't see some merit in Apuzzo's brief. The timing could line up near the next Sheriff Arpaio presser. NJ is right next to the NYC MSM center, so coverage might actually occur.
1 posted on 05/15/2012 6:45:35 AM PDT by Seizethecarp
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To: LucyT; melancholy; null and void

Apuzzo ballot appeal accelerated ping...


2 posted on 05/15/2012 6:49:21 AM PDT by Seizethecarp
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To: Seizethecarp

IMO, for this appeal to work, they need to hammer home that the Wong Kim Ark decision affirmed and upheld the NBC definition in Minor; and that the Ankeny appeals decision also affirmed that Minor is the ONLY Supreme Court decision that provided a legal precedent for defining NBC. Their conclusion based on “guidance” from Wong Kim Ark fails because it’s not based on a legal precedent and becuase it ignores that Ark affirmed the NBC definition in Minor as being exclusive and discrete from 14th amendment citizenship. And further, they need to emphasize that there is no legally authenticated court evidence to prove Obama was even born in the United States. Jpgs, PDFs and news releases from the governor of Hawaii are NOT legally accepted forms of proof of birth or citizenship.


3 posted on 05/15/2012 7:16:10 AM PDT by edge919
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To: Seizethecarp

The Constitution requires that the President be “natural born”, which is defined as having been born in the US (later interpreted to also mean US territory such as a US military base), and where both parents are US citizens.

BHO, stated in his autobiography that his father was a citizen of Kenya, so he is not “natural born”.

As an aside, Marco Rubio’s parents were not citizens until after he as born (in the US), and so he is not “natural born” either.

Why this issue does not matter to conservatives is a puzzle to me.


4 posted on 05/15/2012 7:17:40 AM PDT by theBuckwheat
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To: edge919

Apuzzo has to get past this roadblock first:

“The Administrative Law Judge (ALJ) and Secretary of State (SOS) erred in finding that Obama, because he does not have to consent to his nominating petition, does not have any legal obligation to provide any evidence to the New Jersey Secretary of State proving who he is, where he was born, and that he is constitutionally eligibility to occupy the Office of President in order to be placed on the New Jersey primary election ballot.”


5 posted on 05/15/2012 7:21:48 AM PDT by Seizethecarp
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To: Seizethecarp

“and that he is constitutionally eligibility [sic] to occupy the Office of President in order to be placed on the New Jersey primary election ballot.”

Looks like the judge erred to me, too.


6 posted on 05/15/2012 7:31:20 AM PDT by JohnnyP
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To: Seizethecarp

Yet items No. 2 and No. 3 still address the issue that I was responding.


7 posted on 05/15/2012 7:33:59 AM PDT by edge919
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To: edge919

... and No. 4.


8 posted on 05/15/2012 7:35:02 AM PDT by edge919
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To: Seizethecarp; LucyT; Berlin_Freeper; Hotlanta Mike; Silentgypsy; repubmom; HANG THE EXPENSE; ...
Ping..................

The NJ Appeals Court has accelerated the ballot appeal, something they didn't have to do if they didn't see some merit in Apuzzo's brief. The timing could line up near the next Sheriff Arpaio presser. NJ is right next to the NYC MSM center, so coverage might actually occur.

Thank you, Seizethecarp.

9 posted on 05/15/2012 9:30:59 AM PDT by melancholy (Professor Alinsky, Enslavement Specialist, Ph.D in L0w and H0lder)
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To: melancholy

Good stuff...thanks for the update. When’s Joe’s next presser and any idea what he’ll reveal? I just love that guy!


10 posted on 05/15/2012 9:45:03 AM PDT by spacejunkie2001
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To: spacejunkie2001

I guess around early June.


11 posted on 05/15/2012 10:20:35 AM PDT by melancholy (Professor Alinsky, Enslavement Specialist, Ph.D in L0w and H0lder)
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To: Seizethecarp

You are reading too much into the expedited schedule. It just means the court recognizes it needs to be resolved quickly. Scheduling telephonic arguments most likely means they are going to blow off the petitioners. The court wants as little publicity for this case as possible.

Don’t be disappointed when the court ignores the constitution.


12 posted on 05/15/2012 10:30:25 AM PDT by SeaHawkFan
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To: Seizethecarp
Apuzzo needs to provide evidence of original intent of "natural born" because the Supreme Court in Minor v. Happersett said they "need to look elsewhere" and failed to see Thomas Paine's plain-meaning description of "natural born" in his 1791 book The Rights Of Man.

The court needs this original intent put forth to them, and then needs to give it the same significance that Thomas Jefferson's letter to the Danbury Baptist Association was given as original intent of the establishment clause. The court needs to understand that neither Jefferson nor Paine were Framers of the Constitution, yet Jefferson's 1802 letter was used to settle the establishment clause. Therefore, Paine's 1791 book should be used to settle the natural-born clause, too.

From The Rights of Man, The Rights Of Man, Chapter 4 — Of Constitutions:

If there is any government where prerogatives might with apparent safety be entrusted to any individual, it is in the federal government of America. The president of the United States of America is elected only for four years. He is not only responsible in the general sense of the word, but a particular mode is laid down in the constitution for trying him. He cannot be elected under thirty-five years of age; and he must be a native of the country.

In a comparison of these cases with the Government of England, the difference when applied to the latter amounts to an absurdity. In England the person who exercises prerogative is often a foreigner; always half a foreigner, and always married to a foreigner. He is never in full natural or political connection with the country, is not responsible for anything, and becomes of age at eighteen years; yet such a person is permitted to form foreign alliances, without even the knowledge of the nation, and to make war and peace without its consent.

But this is not all. Though such a person cannot dispose of the government in the manner of a testator, he dictates the marriage connections, which, in effect, accomplish a great part of the same end. He cannot directly bequeath half the government to Prussia, but he can form a marriage partnership that will produce almost the same thing. Under such circumstances, it is happy for England that she is not situated on the Continent, or she might, like Holland, fall under the dictatorship of Prussia. Holland, by marriage, is as effectually governed by Prussia, as if the old tyranny of bequeathing the government had been the means.

The presidency in America (or, as it is sometimes called, the executive) is the only office from which a foreigner is excluded, and in England it is the only one to which he is admitted. A foreigner cannot be a member of Parliament, but he may be what is called a king. If there is any reason for excluding foreigners, it ought to be from those offices where mischief can most be acted, and where, by uniting every bias of interest and attachment, the trust is best secured. But as nations proceed in the great business of forming constitutions, they will examine with more precision into the nature and business of that department which is called the executive. What the legislative and judicial departments are every one can see; but with respect to what, in Europe, is called the executive, as distinct from those two, it is either a political superfluity or a chaos of unknown things.

Yes, Paine did use the term "native of the country." Does this mean "native born" instead of "natural born?" We have to look at the following statements to answer that question.

Paine refers to Engish examples in order to define this. Paine cites "foreigner" and "half a foreigner" as the oppposite to "full natural" connection to the country. So, what is "half a foreigner?"

It seems to me that "half a foreigner" is a person with one parent who is a citizen and one parent who is not. This person does not have have a "full natural... connection with the country."

Paine wrote plainly of why the Framers did not want "half-foreigners" to be president, and why only people with a "full natural... connection with the country" were allowed to become President.

Paine was widely recognized as the most influential writer of the time of Independence because of his plain writing style that resonated with the common person.

Paine's description of the meaning of Article II was written in 1791, and I take it to be reflective of the common understanding of the time. This was, after all, written just two years after the ratification of the Constitution. If Paine said that natural born citizens meant both parents were citizens, then that was the plain meaning.

-PJ

13 posted on 05/15/2012 10:43:33 AM PDT by Political Junkie Too (If you can vote for President, then your children can run for President.)
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To: SeaHawkFan

“The court wants as little publicity for this case as possible.”

If the court wanted to give as little publicity as possible, as a first option it could have not only refused to take the case, but in addition, not given notice until it was too late to effect Barry’s placement on the ballot.

Second, it could have delayed accepting the case beyond the normal time frame for the circuit.

Third it could have accepted the case in the normal time frame.

Dead last is take the case early, IMO.

I don’t presume to know how the court will rule, but I believe it might “offend the conscience” of the court in reviewing the lower court transcript to find that Barry’s defense attorney Alexandra Hill said that “Micky Mouse” would be qualified to run as a Democratic Party primary candidate in NJ and that the defense didn’t even bother to submit a certified BC to the lower court (or in any court anywhere).


14 posted on 05/15/2012 11:38:32 AM PDT by Seizethecarp
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To: Political Junkie Too

“It seems to me that “half a foreigner” is a person with one parent who is a citizen and one parent who is not.”

I don’t see how that could be correct since it says that the person who exercises the perogative is “always” half a foreigner and “always” married to a foreigner. Perogative is usually a reference to the king’s (royal) perogative.


15 posted on 05/15/2012 3:07:41 PM PDT by 4Zoltan
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To: Political Junkie Too

For what it is worth, here is some real quick research.

It appears that Paine is referring to the fact that the German House of Hanover controlled the English Throne.

The Settlement Act of 1701 put Sophia of Hanover (who had never been to England) as the direct heir to the throne after Queen Ann. Sophia died before she could become queen and her son George eventually became king (George I). George III (the king at the time of the Revolution) was his grandson.


16 posted on 05/15/2012 4:09:07 PM PDT by 4Zoltan
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To: Political Junkie Too

If Paine is using the term “native” as was in the “nomenclature” familiar to the founders (aka Law of Nations), then natives are those who are born in the country to citizen parents. The term is interchangeable with natural-born citizen as the Supreme Court defined it, but BOTH terms require citizen parents.


17 posted on 05/15/2012 8:03:31 PM PDT by edge919
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To: edge919
I would agree with that.

-PJ

18 posted on 05/15/2012 8:35:50 PM PDT by Political Junkie Too (If you can vote for President, then your children can run for President.)
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To: 4Zoltan
I'm missing your point.

"Always" is irrelevant to the meaning of "half a foreigner."

-PJ

19 posted on 05/15/2012 8:41:03 PM PDT by Political Junkie Too (If you can vote for President, then your children can run for President.)
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To: 4Zoltan
For what it is worth, here is some real quick research.

Thank you for that. I wouldn't have checked that on my own.

It gives provenance to Paine's words, which can only reinforce its original intent meaning.

-PJ

20 posted on 05/15/2012 8:42:54 PM PDT by Political Junkie Too (If you can vote for President, then your children can run for President.)
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To: Seizethecarp

The court may have accelerated the hearing because of timing to get ballots printed, were the SOS decision be reversed anywhere along the line. The normal briefing process of 30 days here, 30 days there, etc. could cause enormous problems for November.


21 posted on 05/15/2012 9:01:47 PM PDT by EDINVA
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To: Political Junkie Too

I found Paine’s statement confusing.

I always just assumed the King/Queen of England was English. And his statement essentially is ‘In England, the Monarch is sometimes a foreigner, always a half foreigner and always married to a foreigner’.

The King is sometimes a foreigner but even in times when he is not a foreigner, he is still a half foreigner and even if he marries an English woman, he still marries a foreigner. It reads like some kind of riddle.

BTW, Paine’s says that in England foreigners cannot be members of Parliment. John Jay said he thought that the same should be true for the United States.

In a letter to Timothy Pickering,


13th May 1798

Dear Sir

It is said that the Naturalization Act is to be revised and amended. Permit me to suggest an idea which I have for many years deemed important. We doubtless may grant to a foreigner just such a portion of our rights and privileges as we may think proper. In my opinion it would be wise to declare explicitly that the right and privilege of being elected or appointed to or of holding and exercising any office or place of trust or power under the United States or under any of them shall not hereafter be granted to any foreigner but that the president of the United States with the consent of the Senate be nevertheless at liberty to appoint a foreigner to a military office.

I am dear sir
Your most obedient servant
John Jay


And both New York and Massacusetts sent requests to Congress to amend the Constitution so only natural born citizens could be Senators or Representatives.


22 posted on 05/15/2012 10:45:21 PM PDT by 4Zoltan
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To: Political Junkie Too

I think you give Paine too much credit. I believe he was just a rebel rouser. He immigrated here in 1773 because he failed to make a living in England. He fell out of favor here, went to England finding disfavor. Then off to France to stir things up; got thrown into prison there then he writes “Age of Reason” attacking the principles of Christianity - the bedrock of beliefs in this country. He gets out of prison and sails off to America again only to be scorned by the populace. That scorn continued into the 20th century when Teddy Roosevelt called him a “filthy little atheist.”

As a writer he was clear in his writing as were the framers of the Constitution. If they meant natural born citizens of citizen parents, why the heck didn’t they say it in those exact words? Why would you have to clarify the meaning pages or even chapters later? If I wrote out a formula on how to make something, left off a vital part, then in the next chapter said, “oh, by the way, this is what I meant by....” Get my point?

I see a PERIOD after this statement accredited to Paine, “He cannot be elected under thirty-five years of age; and he must be a native of the country.”

I also see the word “he” so shouldn’t we start a campaign against women running for president also?

Other than a handful of people everyone understands “foreigner” as someone not born here. Senators and congressmen can be of foreign birth once they become citizens here. The distinction clearly written down is that the president cannot be foreign (born outside the country) making him a natural born citizen at birth. Over 95% of the country understand the rules that way, the judicial system rule that way, and congress has legislated that way.

By just applying a little common sense one has to realize that they cannot normally PROVE that their parents are citizens of this country. I know I never received a copy of my mother or father’s birth certificate. Hence the 14th amendment wherein it matters NOT who your parents are, if you are born here you are a NBC.


23 posted on 05/16/2012 6:21:08 AM PDT by New Jersey Realist (America: home of the free because of the brave)
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To: New Jersey Realist
I think you give Paine too much credit.

John Adams said, "Without the pen of the author of Common Sense, the sword of Washington would have been raised in vain."

Without Paine, Jefferson would never have written the Declaration of Independence.

He fell out of favor here...

Alexander Hamilton also had his difficulties, and was killed for it. Jefferson died broke. Washington married his wealth, just like John Kerry. Even Benedict Arnold is still the Hero of Saratoga. You can impugn the character of anyone, but their deeds still stand on their own.

I see a PERIOD after this statement accredited to Paine, “He cannot be elected under thirty-five years of age; and he must be a native of the country.” I also see the word “he” so shouldn’t we start a campaign against women running for president also?

I'll let your debate over articles, prepositions, punctuation, and pronouns, stand against my debate of the substance and significance of Paine's plain-meaning words.

-PJ

24 posted on 05/16/2012 9:09:02 AM PDT by Political Junkie Too (If you can vote for President, then your children can run for President.)
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To: 4Zoltan
"I always just assumed the King/Queen of England was English."

William the Conqueror was born in Normandy, France (1027), and of Viking lineage. He was Duke of Normandy in 1035, and King of England by 1066.

There were others as well.

William II of England born in Normandy, France (1060)

Henry II, Richard II and Edward IV were also born in France.

William III was born in the Netherlands and George I and II were born in Germany.

There were others, who were born in Scotland and Wales...both are different countries that are part of the "United Kingdom" today but at their respective times were independent (on/off) from the country of England.

This is a great illustration of how "foreigners" can become King (Queen) of England/UK.

25 posted on 05/16/2012 9:30:54 AM PDT by rxsid (HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))
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To: edge919; Political Junkie Too
"If Paine is using the term “native” as was in the “nomenclature” familiar to the founders (aka Law of Nations), then natives are those who are born in the country to citizen parents. The term is interchangeable with natural-born citizen as the Supreme Court defined it, but BOTH terms require citizen parents.

That's correct. This is what needs to be understood by those of us in the 21st century. “nomenclature” familiar to the founders.

The royal dictionary, french and English, and English and french
Author: A. Boyer
Publisher: T. Osborne, 1764
Original from Ghent University

http://books.google.com/books?id=k7c_AAAAcAAJ

Same author, different Publisher and 4 years later (same definition):

The royal dictionary English and French and French and English: extracted from the writings of the best authors in both languages
Author: Abel Boyer
Publisher: printed by John Mary Bruyset, 1768
Original from the Complutense University of Madrid
Digitized: Jul 27, 2009
Length: 716 pages
Subjects: Foreign Language Study / French

http://books.google.com/books?id=6POB0yOidU4C

The new royal and universal English dictionary ...: To which is prefixed, a grammar of the English language, Volume 2
Author: J. Johnson
Publisher: Millard, 1763
Original from Columbia University
Digitized: Sep 16, 2009

http://books.google.com/books?id=OmtHAAAAYAAJ

A dictionary of the English language. Abstracted from the folio ed., by the author. To which is prefixed, an English grammar. To this ed. are added, a history of the English language
Author: Samuel Johnson
Edition: 3
Published: 1768
Original from: Oxford University
Digitized: Aug 10, 2006

http://books.google.com/books?id=bXsCAAAAQAAJ

The new spelling dictionary
Author: John Entick
Published: 1780
Original from: University of Lausanne
Digitized: Feb 27, 2008

http://books.google.com/books?id=xZUPAAAAQAAJ

Samuel Johnson's A Dictionary of the English Language (1755) "the most widely used dictionary at the ratification's time"

http://johnsonsdictionaryonline.com/?page_id=7070&i=1349

This is the "nomenclature" known to the founders and framers. It also explains why there were some English translations of Vattel's legal treatise that used the word "native" instead of "natural born". The words meant the same thing in the 1700's. That is the nomenclature that they were familiar with.

26 posted on 05/16/2012 10:07:41 AM PDT by rxsid (HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))
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"Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says "The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens."
in THE VENUS, 12 U.S. (8 Cranch) 253, 289 (1814).
Here, we see the great Chief Justice Marshall (who would have studied Vattel's legal treatise "Law of Nations" at the country's first law school...the College of William and Mary...introduced to the school's curriculum in 1779 by Thomas Jefferson) directly quoting, by name, Vattel's work specifically regarding citizenship.

It's why we see Chief Justice Waite state

"At common-law, with the nomenclature of which the framers of the Constitution were familiar [edit: this nomenclature they were familiar with is directly mirrored to the definition found in Law of Nations...which the framers read and referenced during the Constitutional Convention], 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,"

27 posted on 05/16/2012 10:23:09 AM PDT by rxsid (HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))
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Of course, Chief Justice Waite stated that in Minor v. Happersett (1875)
28 posted on 05/16/2012 10:24:12 AM PDT by rxsid (HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))
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To: rxsid

“William the Conqueror was born in Normandy, France (1027), and of Viking lineage. He was Duke of Normandy in 1035, and King of England by 1066.”

Thomas Paine referred to him as “the son of a prostitute, and the plunderer of the English nation”.


29 posted on 05/16/2012 12:56:27 PM PDT by 4Zoltan
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To: 4Zoltan
Thomas Paine was many century's late to the facts.

William the Conqueror was also known as "William the Bastard."

Oh, and many English Kings where known to "plunder."

Point remains, William I was a "foreigner" who took the English crown.

30 posted on 05/16/2012 9:08:25 PM PDT by rxsid (HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))
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To: edge919

“IMO, for this appeal to work, they need to hammer home that the Wong Kim Ark decision affirmed and upheld the NBC definition in Minor; and that the Ankeny appeals decision also affirmed that Minor is the ONLY Supreme Court decision that provided a legal precedent for defining NBC.”

BWAHAHAHAHAHAHA!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!


31 posted on 05/16/2012 9:17:15 PM PDT by Mr Rogers (A conservative can't please a liberal unless he jumps in front of a bus or off of a cliff)
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To: Mr Rogers
BWAHAHAHAHAHAHA!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Sorry, but you acting like an idiot doesn't change the facts.

32 posted on 05/17/2012 7:57:54 AM PDT by edge919
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To: edge919

Except, of course, that NO ONE agrees with your supposed ‘facts’.

Links for WKA & Ankeny here for anyone who wants to know what they REALLY say:

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

http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf

“Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents. “


33 posted on 05/17/2012 10:48:43 AM PDT by Mr Rogers (A conservative can't please a liberal unless he jumps in front of a bus or off of a cliff)
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To: Mr Rogers
Wong Kim Ark and Ankeny agree with me. The only legal precedent both cases could formally cite for defining natural-born citizenship is from Minor v. Happersett.
In Minor, written only six years after the Fourteenth Amendment was ratified, the Court observed that:

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.

Ankeny admitted they had no legal precedent and no real guidance for the 'conclusion' from Wong Kim Ark:

We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a “natural born Citizen” using the Constitution‟s Article II ...

How did they get guidance when they admit there's no legal precedent.

34 posted on 05/17/2012 12:07:54 PM PDT by edge919
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To: edge919

“The only legal precedent both cases could formally cite for defining natural-born citizenship is from Minor v. Happersett.”

You aren’t good at reading, are you...

“II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.

This fundamental principle, with these qualifications or [p656] explanations of it, was clearly, though quaintly, stated in the leading case, known as Calvin’s Case, or the Case of the Postnati, decided in 1608, after a hearing in the Exchequer Chamber before the Lord Chancellor and all the Judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin’s Case, 7 Rep. 1, 4b-6a, 18a, 18b; Ellesmere on Postnati, 62-64; S.C., 2 Howell’s State Trials, 559, 607, 613-617, 639, 640, 659, 679.

The English authorities ever since are to the like effect. Co.Lit. 8a, 128b, Lord Hale, in Hargrave’s Law Tracts, 210, an in 1 Hale P.C. 61, 62; 1 Bl.Com. 366, 369, 370, 374; 4 Bl.Com. 74, 92; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; Cockburn on Nationality, 7; Dicey Conflict of Laws, p. 173-177, 741.

In Udny v. Udny, (1869) L.R. 1 H.L. Sc. 441, the point decided was one of inheritance, depending upon the question whether the domicil of the father was in England or in Scotland, he being in either alternative a British subject. Lord Chancellor Hatherley said: “The question of naturalization and of allegiance is distinct from that of domicil.” P. 452. Lord Westbury, in the passage relied on by the counsel for the United States, began by saying:

The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status.

And then, while maintaining that the civil status is universally governed by the single principle of domicil, domicilium, the criterion established by international law for the purpose of determining civil status, and the basis on which

the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy, [p657] must depend,

he yet distinctly recognized that a man’s political status, his country, patria, and his “nationality, that is, natural allegiance,” “may depend on different laws in different countries.” Pp. 457, 460. He evidently used the word “citizen” not as equivalent to “subject,” but rather to “inhabitant,” and had no thought of impeaching the established rule that all persons born under British dominion are natural-born subjects.

Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said:

By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.

Cockburn on Nationality, 7.

Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics:

“British subject” means any person who owes permanent allegiance to the Crown. “Permanent” allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes “temporary” allegiance to the Crown. “Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.” “Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.

The exceptions afterwards mentioned by Mr. Dicey are only these two:

1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such [p658] person’s birth is in hostile occupation, is an alien.

2. Any person whose father (being an alien) is at the time of such person’s birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien.

And he adds:

The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person’s birth, it in theory, at least, depended not upon the locality of a man’s birth, but upon his being born within the jurisdiction and allegiance of the King of England, and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of, the Crown.

Dicey Conflict of Laws, pp. 173-177, 741.

It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.

III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.

In the early case of The Charming Betsy, (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United States, Chief Justice Marshall saying:

Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of [p659] that character otherwise than in such manner as may be prescribed by law is a question which it is not necessary at present to decide.

2 Cranch 64, 119.

In Inglis v. Sailors’ Snug Harbor (1833), 3 Pet. 99, in which the plaintiff was born in the city of New York about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said:

It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects.

3 Pet. 120. Mr. Justice Johnson said: “He was entitled to inherit as a citizen born of the State of New York.” 3 Pet. 136. Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin’s Case, Blackstone’s Commentaries, and Doe v. Jones, above cited, and saying:

Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be [p660] subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.

3 Pet. 155. “The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.” 3 Pet. 156.

Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.

3 Pet. 164.

In Shanks v. Dupont, 3 Pet. 242, decided (as appears by the records of this court) on the same day as the last case, it was held that a woman born in South Carolina before the Declaration of Independence, married to an English officer in Charleston during its occupation by the British forces in the Revolutionary War, and accompanying her husband on his return to England, and there remaining until her death, was a British subject within the meaning of the Treaty of Peace of 1783, so that her title to land in South Carolina, by descent cast before that treaty, was protected thereby. It was of such a case that Mr. Justice Story, delivering the opinion of the court, said:

The incapacities of femes covert, provided by the common law, apply to their civil rights, and are for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations.

3 Pet. 248. This last sentence was relied on by the counsel for the United States as showing that the question whether a person is a citizen of a particular country is to be determined not by the law of that country, but by the principles of international law. But Mr. Justice Story certainly did not mean to suggest that, independently of treaty, there was any principle of international law which could defeat the operation of the established rule of citizenship by birth within the United States; for he referred (p. 245) to the contemporaneous opinions in Inglis v. Sailors’ Snug Harbor, [p661] above cited, in which this rule had been distinctly recognized, and in which he had said (p. 162) that “each government had a right to decide for itself who should be admitted or deemed citizens,” and, in his Treatise on the Conflict of Laws, published in 1834, he said that, in respect to residence in different countries or sovereignties, “there are certain principles which have been generally recognized by tribunals administering public law” [adding, in later editions “or the law of nations”] “as of unquestionable authority,” and stated, as the first of those principles, “Persons who are born in a country are generally deemed citizens and subjects of that country.” Story, Conflict of Laws, § 48.

The English statute of 11 & 12 Will. III (1700). c. 6, entitled

An act to enable His Majesty’s natural-born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens,

enacted that “all and every person or persons, being the King’s natural-born subject or subjects, within any of the King’s realms or dominions,” might and should thereafter lawfully inherit and make their titles by descent to any lands

from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through or under whom

title should be made or derived, had been or should be “born out of the King’s allegiance, and out of is Majesty’s realms and dominions,” as fully and effectually, as if such parents or ancestors “had been naturalized or natural-born subject or subjects within the King’s dominions.” 7 Statutes of the Realm, 90. It may be observed that, throughout that statute, persons born within the realm, although children of alien parents, were called “natural-born subjects.” As that statute included persons born “within any of the King’s realms or dominions,” it, of course, extended to the Colonies, and, not having been repealed in Maryland, was in force there. In McCreery v. Somerville, (1824) 9 Wheat. 354, which concerned the title to land in the State of Maryland, it was assumed that children born in that State of an alien who was still living, and who had not been naturalized, were “native-born citizens of the [p662] United States,” and, without such assumption, the case would not have presented the question decided by the court, which, as stated by Mr. Justice Story in delivering the opinion, was

whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship where none would exist by the common law if the ancestor were a natural-born subject.

9 Wheat. 356.

Again, in Levy v. McCartee (1832), 6 Pet. 102, 112, 113, 115, which concerned a descent cast since the American Revolution, in the State of New York, where the statute of 11 & 12 Will. III had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8a, that,

if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm,

and saying that such a child “was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354.”

In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said:

The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.

19 How. 576. And, to this extent, no different opinion was expressed or intimated by any of the other judges.

In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:

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. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.

1 Abbott (U.S.) 28, 40, 41.

The Supreme Judicial Court of Massachusetts, speaking by Mr. Justice (afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was “to be governed altogether by the principles of the common law,” and that it was established, with few exceptions,

that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term “citizenship.”

Garder v. Ward (1805), 2 Mass. 244, note. And again:

The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born.

Kilham v. Ward (1806), 2 Mass. 236, 265. It may here be observed that, in a recent English case, Lord Coleridge expressed the opinion of the Queen’s Bench Division that the statutes of 4 Geo. II, (1731) c. 1, and 13 Geo. III (1773), c. 21, (hereinafter referred to) “clearly recognize that to the King in his politic, and not in his personal, capacity is the allegiance of his subjects due.” Isaacson v. Durant, 17 Q.B.D. 54, 65.

The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said:

Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign [p664] State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . The term “citizen,” as understood in our law, is precisely analogous to the term “subject” in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a “subject of the king” is now “a citizen of the State.”

State v. Manuel (1838), 4 Dev. & Bat. 20, 24-26.

That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.

The same doctrine was repeatedly affirmed in the executive departments, as, for instance, by Mr. Marcy, Secretary of State, in 1854, 2 Whart.Int.Dig. (2d ed.) p. 394; by Attorney General Black in 1859, 9 Opinions, 373, and by Attorney General Bates in 1862, 10 Opinions, 328, 382, 394, 396.

Chancellor Kent, in his Commentaries, speaking of the “general division of the inhabitants of every country under the comprehensive title of aliens and natives,” says:

Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent. . . . To create allegiance by birth, the party must be born not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a State, while [p665] abroad and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that, during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered.

2 Kent Com. (6th ed.) 39, 42. And he elsewhere says:

And 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.”

That decision is quoted at length in Ankeny.


35 posted on 05/17/2012 1:37:15 PM PDT by Mr Rogers (A conservative can't please a liberal unless he jumps in front of a bus or off of a cliff)
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To: Mr Rogers
That decision is quoted at length in Ankeny.

Not to the length that you've quoted the dicta and everything they quoted is completley undermined when they admit there is NO LEGAL PRECEDENT. Wrap your head around that. The case they cited did NOT declare Wong Kim Ark to be a natural-born citizen. The ONLY legal precedent is from Minor. Ankeny argues that Minor didn't consider children born to noncitizen parents, but this is an outright lie.

36 posted on 05/17/2012 1:40:26 PM PDT by edge919
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To: edge919

You don’t know what a legal precedence is.

“dictum

n. Latin for “remark,” a comment by a judge in a decision or ruling which is not required to reach the decision, but may state a related legal principle as the judge understands it. While it may be cited in legal argument, it does not have the full force of a precedent (previous court decisions or interpretations) since the comment was not part of the legal basis for judgment.”

The argument made in WKA is central to the decision, and thus is not just ‘dicta’ - unlike the passing comment made in Minor, which birthers like to quote. It is a matter on which they heard testimony from both sides, and was critical in reaching their conclusion. That makes it part of the decision.


37 posted on 05/17/2012 1:56:31 PM PDT by Mr Rogers (A conservative can't please a liberal unless he jumps in front of a bus or off of a cliff)
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To: Mr Rogers

The argument made in WKA is NOT about natural-born citizenship. The only time they referred to it was when they brought Article II and how it was defined by the Minor court. WKA’s central argument was about a different term “citizenship by birth” ... which is why they did not pronounce WKA to be a natural-born citizen ... which Ankeny admits ... which means there’s no legal precedence for the DICTUM in Ankeny. The ONLY legal precedent Ankeny cited was from Minor. That’s it. Game. Set. Match.


38 posted on 05/17/2012 2:02:19 PM PDT by edge919
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To: edge919

BWAHAHAHAHAHAHA!!!!!!!!!!!!!!!!!


39 posted on 05/17/2012 3:07:18 PM PDT by Mr Rogers (A conservative can't please a liberal unless he jumps in front of a bus or off of a cliff)
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