All hail Harlan1196! Keeper and dispenser of knowledge of all things legislative
and determiner of that which shall and shall not be believed!
@There is no such thing as Positive law. It is a meaningless legal term.
Your crown, sire.
Posted on 02/22/2012 10:09:16 AM PST by jdirt
Please attend hearing if you can.
Yes, the serious cognitive disconnect is with you because you're quoting the part of the decision that I said was NOT based on legal precedent and you've ignored the part that IS based on legal precedent.
Article II has a special requirement to assume the Presidency: that the person be a “natural born Citizen.” U.S. CONST. art. II, § 1, cl. 4. The United States Supreme Court has read these two provisions in tandem and held that “[t]hus new citizens may be born or they may be created by naturalization.” Minor v.Happersett, 88 (21 Wall.) U.S. 162, 167 (1874). 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. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.
Id. at 167-168. Thus, the Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.12
Do you understand what this says?? It cited Minor as defining natural-born citizen because it admits that only six years after the 14th amendment, the Supreme Court said the Constitution does NOT say what NBC means. IOW, the 14th amendment does NOT defined NBC.
Ankeny makes two errors: A) They claimed that the 14th amendment and NBC were read "in tandem" ... This is false, because the Minor court elaborated extensively on who the original citizens of the United States were BEFORE explaining what NBC means in the Constitution. B) The Ankeny court says the Minor Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen. They contradict this point in their footnote by acknowledging that Minor "contemplated scenarios where both parents are citizens and aliens." The court does NOT say the question for children born to two citizen parents is left open. This means the Ankeny court answered the question affirmatively for such children. "All children born in the country to parents who were its citizens" ... These are the natural-born citizens. No question is left open about this. It is a self-limiting and exclusive definition. Minor went on to contemplate children born to alien and alien/citizen parents, which Ankeny inexplicably ignored:
Under the power to adopt a uniform system of naturalization Congress, as early as 1790, provided "that any alien, being a free white person," might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States ...
- - -
in 1855 it was further provided that any woman who might lawfully be naturalized under the existing laws, married, or [p169] who should be married to a citizen of the United States, should be deemed and taken to be a citizen. [n11]
From this it is apparent that from the commencement of the legislation upon this subject alien women and alien minors could be made citizens by naturalization, and we think it will not be contended that this would have been done if it had not been supposed that native women and native minors were already citizens by birth.
Do you see the part underlined above?? This answers the question Ankeny says was left open.
But let's suppose that Ankeny was correct and the question was left open ... was it then answered by Wong Kim Ark?? Ankeny tells us otherwise, by way of footnote, but trys to downplay this inconvenient fact as "immaterial."
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 language is immaterial. For all but forty-four people in our nation‟s history (the forty-four Presidents), the dichotomy between who is a natural born citizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant. The issue addressed in Wong Kim Ark was whether Mr. Wong Kim Ark was a citizen of the United States on the basis that he was born in the United States. Wong Kim Ark, 169 U.S. at 705, 18 S. Ct. at 478.
Do you see the part underlined above?? It shows there is NO legal precedent for Ankeny's conclusion that NBCs can be those born in the territory regardless of the citizenship of their parents. Wong Kim Ark did NOT reach this conclusion nor did they even reach that conclusion for the 14th amendment.
Ankeny's claim that it is "immaterial" is complete and utter horse radish. They said it is irrelevant to all but the 44 former presidents. Well, no, it is relevant to anyone and everyone who has sworn to uphold the Constitution. It is relevant to anyone and everyone who is ruled under that Constitution. It is relevant to anyone and everyone who wants to run for president, and it should be relevant to anyone and everyone who votes for president. The NBC requirement is not there as a favor for those who become president.
And the funny thing is that the plaintiffs didn't even use your interpretation of Minor in their case:
At the time, most people had not read Minor closely nor understood what it meant. But it probably wouldn't have mattered because the Indiana court showed they were being dishonest about the plaintiffs' citations anyway. Did you read what they said?? Obama's own attorney has used factlack dot org as a source for judicial notice. Ankeny pretends in this case it's not good enough for them. They cite the Rocky Mountain News, who wrote a story correcting factlack dot org (because they did a terrible job of researching the issue). Vattel and the Law of Nations are a widely cited by the SCOTUS in decisions from the 1800s up through the 2000s. The citations to various nineteenth century congressional debate was to show the original intent of the authors of the 14th amendment. Why does Ankeny not admit that's what the citation was??
Then Ankeny says: "To the extent that these authorities conflict with the United States Supreme Court‟s interpretation of what it means to be a natural born citizen, ...." We'll stop there for a moment. Those authorities do NOT conflict with the SCOTUS's interpretation of what it means to be a natural-born citizen. Ankeny is simply telling a massive lie here because they already cited the Minor interpretation of NBC and admitted that WKA does NOT give an interpretation of NBC.
We'll continue: "we believe that the Plaintiffs‟ arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true" ... THIS is the meat of the Ankeny review of NBC. Their interpretation of the legal dicta from WKA does NOT have a precedent behind it. It is nothing more than dicta that WKA ONLY used to give teeth to the 14th amendment. By making a conclusion that is NOT supported by legal precedent, they cannot declare EITHER McCain NOR Obama to be a natural-born citizen ... so they didn't. It's simply not there. So instead, they simply used their errant interpretation of NBC to say they did NOT have to accept the plaintiff's arguments as factual or legal. IOW, they just found a reason to say they didn't like the plaintiff's argument, so they were just going to ignore it.
What has changed since then, is that per Ankeny's suggestion, we recognized that Minor IS the definitive Supreme Court precedent on NBC and that the Minor definition was upheld and affirmed in U.S. v. Wong Kim Ark, which explains why that court "did not actually pronounce the plaintiff a “natural born Citizen” using the Constitution‟s Article II language." Ankeny unwittingly confirmed the Minor definition of NBC and simply lied their way out of admitting it.
“Your argument doesn’t fly Mr Rogers.”
Actually, you completely missed the point of the argument. My POINT was that sometimes they used NBC and sometimes they used NBS - which only makes sense if NBC = NBS.
The terms were interchangeable. In the early years, it depended on the whim of the legislature if they said new citizens had rights equal to NBS or NBC.
All of these new citizens were being naturalized, so none of them actually WERE NBCs.
And where can we find judicial acknowledgement of the “error” in Ankeny? Why that’s right - we can’t. It’s just a bunch of birthers making stuff up again.
Get back to me when you get a real victory in a real court - OK?
So by way of holding or ruling how is Wong Kim Ark a relevant SCOTUS case on the issue of NBC?
BTW, the dicta in WKA isn't a holding or a ruling so don't even try it.
So by way of holding or ruling how is Wong Kim Ark a relevant SCOTUS case on the issue of NBC?
BTW, the dicta in WKA isn't a holding or a ruling so don't even try it.
Right. When it's murdering a baby or making Homosexual sex legal, it isn't right until a court says so.
Get back to us when you can think for yourself.
Read Ankeny - it explains it to you.
You will be hearing a lot about Ankeny as it is used to slap down birther suits all over the country.
I know you disagree but since you have been consistently wrong on birther litigation I don’t lend your thoughts on the issue much credence.
It is every bit as relevant as the discussion in Minor. More so, since Minor discusses the issue for a couple of sentences, and WKA does for half of the decision.
However, the DICTA in WKA has been highly influential in citizenship cases for over 100 years now. Minor has not, since it was a question on rights of citizens to vote.
And the dissent in WKA recognized the implication that it made WKA a natural born citizen, eligible to be President.
But then, someone who doesn’t know what a ruling is probably can’t handle a discussion on holdings and dicta.
Read Roe v Wade. It is cut from the same cloth. (made up bullshit)
You will be hearing a lot about Ankeny as it is used to slap down birther suits all over the country.
Just as Roe v Wade slaps down anti-abortion suits all over the country. One of these days we need to have a reckoning with the court system.
I know you disagree but since you have been consistently wrong on birther litigation I don’t lend your thoughts on the issue much credence.
Yes, you are not allowed on the field to play, so you must be wrong, and we have Confucius here to explain it to us.
Grow up little child.
All hail Harlan1196! Keeper and dispenser of knowledge of all things legislative
and determiner of that which shall and shall not be believed!
@There is no such thing as Positive law. It is a meaningless legal term.
Your crown, sire.
So by way of holding or ruling how is Wong Kim Ark a relevant SCOTUS case on the issue of NBC?
Read the underlined part and try again.
Show me one single instance of the words "citizen parents" from the syllabus.
And the dissent in WKA recognized the implication that it made WKA a natural born citizen, eligible to be President.
///////////////////////////////////////////////////////////
It did no such thing! The case acknowledged that WKA was a citizen but “not” a natural Born Citizen.
By the way what the “H” is NBS........New Bull Chit?
Show me one single instance of the words "citizen parents" from the syllabus.
Natural born subject (NBS)...from English law and dicta in Wong Kim Ark.
I aplogize. The WKA decision IS binding.
“It is a legal phrase which refers to the legal, moral, political, and social principles used by a court to compose the rationale of a particular judgment. Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on courts of lower and later jurisdiction—through the doctrine of stare decisis. Certain courts are able to overrule decisions of a court of co-ordinate jurisdiction—however out of interests of judicial comity they generally try to follow co-ordinate rationes.
The process of determining the ratio decidendi is a correctly thought analysis of what the court actually decided—essentially, based on the legal points about which the parties in the case actually fought. All other statements about the law in the text of a court opinion—all pronouncements that do not form a part of the court’s rulings on the issues actually decided in that particular case (whether they are correct statements of law or not)—are obiter dicta, and are not rules for which that particular case stands.”
http://en.wikipedia.org/wiki/Ratio_decidendi
Thus in Minor, the question was if women had the right to vote:
“And the constitution of the State of Missouri [n2] thus ordains:
“Every male citizen of the United States shall be entitled to vote.”
Under a statute of the State all persons wishing to vote at any election, must previously have been registered in the manner pointed out by the statute, this being a condition precedent to the exercise of the elective franchise.
In this state of things, on the 15th of October, 1872 (one of the days fixed by law for the registration of voters), Mrs. Virginia Minor, a native born, free, white citizen of the United States, and of the State of Missouri, over the age of twenty-one years, wishing to vote for electors for President and Vice-President of the United States, and for a representative in Congress, and for other officers, at the general election held in November, 1872, applied to one Happersett, the registrar of voters, to register her as a lawful voter, which he refused to do, assigning for cause that she was not a “male citizen of the United States,” but a woman. She thereupon sued him in one of the inferior State courts of Missouri, for wilfully refusing to place her name upon the list of registered voters, by which refusal she was deprived of her right to vote.
The registrar demurred, and the court in which the suit was brought sustained the demurrer, and gave judgment in his favor; a judgment which the Supreme Court affirmed. Mrs. Minor now brought the case here on error.”
She had argued that under the equal protection clause of the 14th, all citizens had the right to vote. But the court said “3. The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment does not add to these privileges and immunities. It simply furnishes additional guaranty for the protection of such as the citizen already had.”
The case of Minor v Happersett was about voting rights. Their comments about NBCs, made in passing, and admitting they made no attempt to resolve the definition, were obiter dicta.
WKA was a citizenship case, and the entire decision is dedicated to the question. Thus, it’s rationale for deciding IS “Ratio decidendi”, or “the rationale for the decision.”
“Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on courts of lower and later jurisdiction—through the doctrine of stare decisis.”
So yes, the discussion in WKA was a type of dicta that IS binding on subsequent courts. Thank you for helping me to learn something about the law. I thought the actual RULING was binding, but the argument was not. But if the argument is key to the question, then it IS binding.
Subject as a term applying to Republican Freemen was not used because of its association with British royalty. Republican Freemen are “NOT” subjects.
“And the dissent in WKA recognized the implication that it made WKA a natural born citizen, eligible to be President.
///////////////////////////////////////////////////////////
It did no such thing!”
Ummm....yes it did.
“Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.”
It understood the implications of the argument used by the majority, which I now realize IS binding.
God didn't give you a brain to make excuses for what's right there in plain English. What part do you specifically not understand or disagree with?? Notice that the ALJ in Georgia for example, did not cite a legal precedent from Ankeny, but instead said he found their argument to be "persuasive."
From the birthers favorite case, Minor:
“For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words “subject,” “inhabitant,” and “citizen” have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more.”
But as I have shown already, the term ‘natural born subject’ was, for some years after, used interchangeably with NBC.
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