The Donofrio case: "natural born citizen" (not about Obama's birth certificate)

Renew America ^ | Arlen Williams

[ckilmer]

December 5, 2008

The Donofrio case: "natural born citizen" (not about Obama's birth certificate)

By Arlen Williams

Today, before the United States Supreme Court lies Leo Donofrio v. Nina Mitchell Wells, New Jersey Secretary of State. This suit was received by Justice Thomas, and by the determination of the entire court, it is scheduled for conference Friday, December 5. This conference is held to decide what, if any, further steps should be taken. Only two of these steps would be to either intervene in the process of selecting the president, or to hear oral arguments.

Essence of the case

By this case, Barack Obama, John McCain, and Roger Calero (of the Socialist Workers Party, on the New Jersey ballot) do not qualify as "natural born Citizens" under Article 2, Section 1, Clause 5 of the Constitution, which states the following:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

Standing

Other cases against Obama's candidacy have been rejected by various courts, due to a private citizen's apparent lack of standing to sue a candidate. However, this case is an action against the Secretary of State of New Jersey and as such, has precedent, as Donofrio relates. He originally sought to motivate the Secretary to qualify or disqualify these three candidates on the New Jersey ballot. Donofrio also cites 2000's famous Florida case, Bush v. Gore, as precedent for a state case regarding a presidential election to be brought to the Supreme Court for emergency action.

Merit: reasoning behind Donofrio v. Wells

To interpret the U.S. Constitution with intellectual honesty, one must maintain the integrity of the meaning of the Constitution. That means interpreting the letter of the law: its words and phrases, based upon the immediate context of the Constitution itself, any explanations of the framers, traditional meaning inherited by the framers, and the generally accepted, legal meanings of words and phrases in use at the time of its drafting. Further, attention is to be paid to the spirit of the law, by understanding the purposes of the framers and the results they sought or sought to avoid, as they drafted each element of the Constitution.

In view of these considerations, being a "natural born Citizen" here requires meeting both of these two criteria: (1) citizenship must be passed on by the constitutionally pertinent principle of natural law, which assumes that citizenship is inherited from one's father's citizenship, and (2) citizenship must be granted by means of being born in the actual territory of the United States. Accordingly, to maintain the original intention of the Constitution's framers, a U.S. President is to be free of competing allegiances with other nations, from birth onward. To cite Donofrio's own words from his blog:

The Framers wanted to make themselves eligible to be President, but they didn't want future generations to be Governed by a Commander In Chief who had split loyalty to another Country. The Framers were comfortable making an exception for themselves. They did, after all, create the Constitution. But they were not comfortable with the possibility of future generations of Presidents being born under the jurisdiction of Foreign Powers, especially Great Britain and its monarchy, who the Framers and Colonists fought so hard in the American Revolution to be free of.

According to this case, Barack H. Obama II is not qualified, because his father, Barack H. Obama I, was a citizen of the United Kingdom as a Kenyan. Kenya was a British colony at the time of Obama II's birth in 1961. This citizenship was conferred to Obama II by U.K. law. Further to this case is the apparent fact that Obama II became a citizen of Indonesia, when he lived there as a child with his mother and adoptive father, Lolo Soetoro. This would mean Obama's U.S. Citizenship status was revoked, since Indonesia had no dual-citizenship provision with the U.S.A.

According to this case, John McCain is not qualified, because he was born on a military base in the Panama Canal Zone, which was a protectorate of the United States and has never been a territory of the United States, even though his parents were U.S. Citizens.

According to this case, Roger Calero is not qualified, because he was born a citizen of Nicaragua, to foreign parents, on foreign soil. The mere fact that Roger Calero was on the ballot in five states indicates to the Supreme Court and the nation, that the process of qualifying a presidential candidate is broken and intervention is necessary.

Merit: context, corroboration, and case law

Corroborative to this case, the Constitution's Article 1, Section 8, Clause 10 states that a power of Congress is to "define and punish... offenses against the law of nations." The Law of Nations has been international law, which as documented by Emmerich de Vatel (1758) states, in Chapter XIX, paragraph 212, "The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights."

Vatel follows with paragraph 215, in which he asserts, "It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed.(59) By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say 'of itself,' for, civil or political laws may, for particular reasons, ordain otherwise."

The chief framer of the related 14th Amendment of the Constitution, John A. Bingham corroborated this dual criteria stating, "every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen." An extensive analysis citing this is Defining Natural-Born Citizen, by P.A. Madison, The Federalist Blog.

Since then, the case of Perkins v. ELG, U.S. 325 (1939) provides precedent for requiring these two criteria, for one to be called a "native born citizen" (see, The Law — Perkins v. ELG, blog, The Betrayal).

St. George Tucker, Justice of the Supreme Court of Virginia, wrote a version of the authoritative Blackstone's Commentaries: With Notes of Reference to the Constitution... which became a recognized resource for determining the framers' original intent. In his Volume 1 — Appendix; Note D, he explained that the Article 2 "natural born Citizen" requirement was purposed to avoid competing allegiances:

That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to be dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. It was by means of foreign connections that the stadtholder of Holland, whose powers at first were probably not equal to those of a president of the United States, became a sovereign hereditary prince before the late revolution in that country. Nor is it with levity that I remark, that the very title of our first magistrate, in some measure exempts us from the danger of those calamities by which European nations are almost perpetually visited. The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora's Box.

Certainly, this applied to sons of subjects of the United Kingdom (and the fact that one such subject would travel abroad to declare himself a "Citizen of the World" before hundreds of thousands might also have provided relevant warning).

Intended result of this case

The Donofrio suit calls for a stay of the Dec. 15 Electoral College vote, until a constitutionally acceptable means is attained, of presenting the Electors a set of qualified candidates.

During or after their Dec. 5 conference, the Supreme Court could decide upon a number of directions. Their next step may be revealed this very day, or on Monday, Dec. 8, or at some other time. A book could be written of the many potential outcomes — and historians will write libraries about one set of results, in their hindsight.

"Post Script" in HTML

Leo Donofrio reports that numerous obstacles have been intentionally placed in the way of his petitioning the courts, in both New Jersey and at the Supreme Court. He also names public officials who have at times attempted to mislead him and by their treatment of his case, have obstructed his path to the Supreme Court. That is another story and not an undramatic one.

Donofrio has had three blogs — and Internet harassment, as follows:

1. http://blogtext.org/naturalborncitizen — used through November 21, until its blog service was hit by a denial of service attack, bringing it down (servers have been repaired)
   
   

2. http://thenaturalborncitizen.blogspot.com — used through November 27, until it became clear that Google has not been at all swift to remove a "flag page," inappropriately citing that blog for "possible Blogger Terms of Service violations"
   
   

3. http://naturalborncitizen.wordpress.com — hopefully, unmolested as of your reading
   
   

This report may be updated, here and/or at investigatingobama.blogspot.com, as progress is made. For information about the operations of the Supreme Court in such matters, see "A Reporter's Guide to Applications Pending Before the Supreme Court of the United States."

h/t: numerous bloggers and forum posters including FReepers, MamaTexan and joygrace

[savedbygrace]

Good post.

[Jim W N]

I'm not an Obamacrat and I have a copy of the Constitution in my hand, and so far, I've seen only Constitutional distinction regarding citizenship I've seen is 1) born in the U.S. or 2) naturalized in the U.S., with the caveat of being subject to U.S. jurisdiction.

So far, I haven't seen a third category in COTUS or law distinguishing something called "natural born" citizen as opposed to simply born in the U.S.

The issue at hand as far as I know is the question about Obama's "missing" (not brought forward) hospital birth record which would be critical evidence to validate his birthplace.

[meadsjn]

During or after their Dec. 5 conference, the Supreme Court could decide upon a number of directions. Their next step may be revealed this very day, or on Monday, Dec. 8, or at some other time. A book could be written of the many potential outcomes — and historians will write libraries about one set of results, in their hindsight.

Judgement Day -- shall the Republic survive, or be relegated to a Banana Mobocracy.

[baa39]

FINALLY! This has been repressed (not merely ignored) by the media for months, a virtual news blackout, and even by the White House. We are getting a trickle of news coverage at the last minute because they can’t ignore a Supreme Court hearing, although notice it will mostly be in the tone of “how did those right wing conspiracy nuts manage to pester the Supreme Court about this nonsense and they are grasping at straws to take down our Obamassiah.” We Freepers have known about these issues for weeks, but every person I ask about this has said, “Huh? What?” They have heard nothing on TV. Even Drudge posted nothing until yesterday and it’s halfway down the page. Is our entire government and media completely bought out, and the future of our nation resting in the hands of a few Supremes and their courage or lack thereof?

[gieriscm]

From Article II, Section 1:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

[baa39]

Donofrio’s rationale is explained on his website. Although we are certainly entitled to see the BC, that is not the point, in his argument, which includes citizenship precedents, not only Constitution:

http://thenaturalborncitizen.blogspot.com/

[MrB]

I see a “comma problem”.

Is it
(a Natural born citizen) OR (a Citizen of the United states at the time of the adoption of this Constitution)

or is it
(a natural born citizen or a citizen of the United States) at the time of the adoption of this Constitution.

Big difference, the second interpretation being more open.

[Non-Sequitur]

The issue at hand as far as I know is the question about Obama's "missing" (not brought forward) hospital birth record which would be critical evidence to validate his birthplace.

Donofrio is not challenging Obama's being born in Hawaii. His claim is that a natural born U.S. citizen is one born on U.S. soil of two U.S. citizen parents. According to him Obama fails to meet the requirement based on his father's citizenship. He also claims McCain doesn't meet the requirement because he was born on foreign soil. To accept Donofrio's logic you would have to disqualify both men.

[Eye of Unk]

What must be done must be done then.

[Diogenesis]

[Binghamton_native]

Your point is a good point. However, a logical reading of the clause indicates that “natural born” is a more restrictive qualification. If not, it would be unnecessary to the clause. If it is not the more restrictive clause, any citizen age 35 or over is qualified. It appears that the “Citizen of the United states at the time of the adoption of this Constitution” clause was put there to allow those citizens born outside of the United States at the time the Constitution was ratified to be qualified.

[seekthetruth]

“No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.”
http://naturalborncitizen.wordpress.com/

[gieriscm]

Yeah those pesky commas can make live miserable, eh? Don't get me started on the ones in the Second Amendment... :)

That aside, the second interpretation:

(a natural born citizen or a citizen of the United States) at the time of the adoption of this Constitution

would make no sense as there simply are no citizens, natural-born or otherwise, walking around today who were alive at the time the Constitution was adopted. Even Senator Byrd (D-WV) isn't that old... :)

[jarofants]

Richardson revelation-Obama is an immigrant

http://www.youtube.com/watch?v=s5OUdj_YIpo

[PrezUSA222]

I agree with the bulk of the case as it pertains to Obama and the Socialist party candidate, but under US Law, John McCain is defined as a natural born citizen. It does not matter whether or not Panama was a territory or not. He was born on a US Military base to two American citizens which makes him naturally born in the US as a citizen. So the standing against John McCain to me has no grounds and in fact contradicts some of the quoted analysis stated in the article above. But power to them all to get Obama off the ballot. If it goes to trial and results in Obama not being qualified, his electoral votes should not be counted, he should be brought up on charges of fraud and John McCain should be sworn in as the next President of the United States.

[usurper]

Donofrio is not challenging Obama's being born in Hawaii. His claim is that a natural born U.S. citizen is one born on U.S. soil of two U.S. citizen parents. According to him Obama fails to meet the requirement based on his father's citizenship.

After reading the body of the case above, I think this is a week case. I don’t believe that the duel requirement will hold up:

The meaning was tested as to whether the 14th amendment meant that anyone born in the United States would be a citizen regardless of the parents' nationality, in the case of Elk v. Wilkins, 112 U.S. 94 (1884), where the parents were Native American. The Supreme Court held that the children of Native Americans were not citizens despite the fact that they were born in the United States.

The meaning was tested again in the case of United States v. Wong Kim Ark, 169 U.S. 649 (1898), regarding children of Chinese citizens born in United States. The court ruled that the children were U.S. citizens.[2]

The issue of him loosing his right to citizenship when he was moved to Indonesia is even less persuasive even if he held a foreign passport:

The Constitution does not explicitly provide any procedure for loss of United States citizenship. Loss of U.S. citizenship is possible only under the following circumstances:

1) Fraud in the naturalization process. Technically, this is not loss of citizenship but rather a voiding of the purported naturalization and a declaration that the immigrant never was a U.S. citizen.

2) Voluntary relinquishment of citizenship. This may be accomplished either through renunciation procedures specially established by the State Department or through other actions which demonstrate an intent to give up U.S. citizenship.

As I have maintained if he was born in HI he is a natural born citizen and that issue has yet to be adequately resolved.

[fightinJAG]

The law does seem to recognize that a person can be a “natural born citizen” and not be born in the U.S.-—at least that’s the accepted theory re John McCain.

Donofrio challenges McCain’s eligibility, too. And, in fact, who knows since the SCOTUS has never spoken to this exact issue that is not about citizenship, but about eligibility to serve as President?

[MrB]

Senator Byrd (D-WV)
Senator Byrd (KKK-WV)

[Jim W N]

Right, the Constitution’s my source. Is there something in here contrary to what I’ve stated?