The decision is Ankeny v. Governor, handed down last Thursday. The opinion is pretty detailed, and is the only substantive opinion I know of in a case challenging President Obama’s eligibility (since the other cases, including the ones that assert that he wasn’t born within the U.S., have been rejected on procedural grounds, such as ones related to standing). The court’s reasoning strikes me as quite persuasive.
Andrew Hyman says:
How dare you even mention this subject. Are you a birther or something? :-)
November 18, 2009, 10:39 amsitzpinkler says:
The thing that strikes me about that opinion is how nice Indiana’s FILED stamp is.
November 18, 2009, 11:11 amKent Scheidegger says:
My favorite part is footnote 16: the “birther” challenge to President Chester A. Arthur, elected in 1880.
November 18, 2009, 11:15 amTerry Hart says:
The court is really giving the plaintiffs a hard time. My favorite quote is footnote 11: “Plaintiffs do not provide pinpoint citations to the congressional debate quotations to which they cite.”
November 18, 2009, 11:23 amTim Gadsden says:
The interesting thing about Chester Arthur is that in 1880, no one knew that his father was not a US citizen at his birth. That fact was uncovered only last year when it was discovered that his father naturalized many years after Chester’s birth. Also, please note that the XIV amendment does not use the term “natural born citizen” at all. Also note that reading the documented discussions of KWA, it is clear that they explicitly did NOT rule on whether he was a “natural born citizen”. They left that conclusion to a later court to decide.
This court’s decision provides multiple specific points on which valid appeals may be made. Ultimately, this issue will need to be determined via a Quo Warranto filing in the DC courts.
See here for more on the Indiana ruling and NBC facts.
We aren’t ‘birthers’ we are ‘dualers’.
November 18, 2009, 11:35 amJust Dropping By says:
Ah, ha! I’ve discovered an error in the opinion that clearly invalidates the entire decision! In footnote 14 on page 17 we find the following statement:
For all but forty-four people in our nation’s history (the forty-four Presidents),
Although there have been forty-four presidents, there have only been forty-three people who have held that office! Obviously, this means the decision is wrong on the merits and Obama is not the lawful president of the United States, Q.E.D. [/sarcasm]
November 18, 2009, 11:40 amDotar Sojat says:
I take a back seat to no one in my opposition to most of what Obama says and does, but he was elected President by a majority of the voters and electors, and that should be that.
November 18, 2009, 11:47 amPeteP says:
What a waste of time ( the birthers are ). Anyone want to put a dollar on the idea that Obama will EVER be removed from office based on ANY judicial decision that he is not qualified by birth ?
Geez ….
November 18, 2009, 11:48 amegd says:
I think this argument is a little too broad. While I think the issue of the President’s birth and citizenship is a non-issue, I can imagine a scenario where an individual affirmatively does not meet the constitutional requirements to hold the office of President. In such a case, there should be some legal recourse to remove the President from office. If not, then the Constitutional requirements are merely suggestions.
If you subscribe to this view, under what rationale would you disqualify ‘Senator’ Brad Esposito or Frank Tambanelli from the office of the Presidency?
I wouldn’t put a dollar on the idea that Obama will EVER be removed from office by any means other than the natural termination of his term (or terms). Once impeachment proceedings were proposed, the media spin machine would kick into high gear.
November 18, 2009, 12:09 pmCan't find a good name says:
Or suppose a Victoria Woodhull-type candidate ran for the presidency when she was 34 years old. Even if she won, her VP candidate would have to serve as acting president until she turned 35 and became eligible for the presidency.
November 18, 2009, 12:23 pmdearieme says:
All this is just a diversion from the real question viz what is it on Obama’s birth certificate that is so embarrassing that he’s determined to hide it?
November 18, 2009, 12:29 pmAnthony says:
There is — impeachment. You can almost certainly find something to call a ‘high crime or misdemeanor’.
November 18, 2009, 12:32 pmDavid Chesler says:
My prediction: Since 11 score and 13 years ago our fathers brought forth on this continent a new nation, neobirthers (hereafter called continental drifters) will claim that being born on a mid-ocean island doesn’t cut it, Obama wasn’t a citizen from birth jus soli and his mother was too young to give him citizenship jus sanguinis.
November 18, 2009, 12:33 pmGuest14 says:
Post a scan of your birth certificate. Do it now, or you’re a Martian and a Communist.
November 18, 2009, 12:33 pmDavid Chesler says:
Dearieme, also his butt. George Shultz has a tiger on his. Why haven’t we seen Obama’s butt yet?
EGD – before he’s elected the remedy is Congress doesn’t certify; I suppose hiding it would be impeachable, what if everyone ignored it? But that goes for anything, if enough people ignore the rules.
November 18, 2009, 12:38 pmJ. Aldridge says:
Interesting the court continues to insist citizenship by birth must still be “interpreted in the light of the common law.”
Under the common law Obama wouldn’t be a citizen because his father was black and mother was white. I won’t burden the court with facts.
November 18, 2009, 1:09 pmRPT says:
Or a “Visitor”.
November 18, 2009, 1:09 pmArthur birther says:
I demand a retroactive challenge to Chester Arthur’s citizenship and presidency! I also challenge every statute that he signed into law. In fact, as soon as I find some, I’ll go violate them so I have standing.
November 18, 2009, 1:12 pmSome dude says:
Did the opinion find that BHO was demonstrated to have been born in Hawaii?
November 18, 2009, 1:17 pmkumquat says:
Why do people like dearieme keep insisting the official birth certificate replacement copy sent to Obama by the state of Hawaii isn’t a “real” birth certificate?
November 18, 2009, 1:19 pmRPT says:
Because it doesn’t say the right thing.
November 18, 2009, 1:24 pmruuffles says:
Yeah. I noticed that as well. Very sexy.
November 18, 2009, 1:25 pmADF Alliance Alert » Indiana Court of Appeals issues first substantive opinion rejecting Obama citizenship challenge says:
[...] Volokh reports at the Volokh Conspiracy on the ruling in Ankeny v. Governor, No. 9A02-0904-CV-353 (Ind. App. Nov. 12, [...]
November 18, 2009, 1:26 pmruuffles says:
Electoral college before, impeachment after.
November 18, 2009, 1:28 pmSome dude says:
McCain definitely wasn’t eligible. He wasn’t a citizen at the time of his birth. Although I think he was retroactively made a citizen at the time of his birth, which is a legal fiction. If they could do that, they could retroactively make the Governator a citizen at the time of his birth.
November 18, 2009, 1:29 pmSome dude says:
To answer my own question, I read it an the opinion does not say that BHO has been demonstrated to have been born in Hawaii.
November 18, 2009, 1:32 pmTim Gadsden says:
The point is that we have laws, written by our Founding Fathers and amended thereafter; The Constitution. By the definitions used by the Founding Fathers, dual-citizenship was a disqualifying condition for the presidency. There is a reasonable argument to be made that further amendments have changed those initial conditions, but I have read opinions on both sides and am convinced that it remains so.
Anyone who argues that the voters have spoken, or that the ‘there is no way he will be removed from office’, are arguing on behalf of disregarding the Constitution. I find that an unsupportable argument.
McCain may or may not have been eligible. If he was granted Panamanian citizenship at birth, I would argue that he is a citizen by blood at birth, but not an NBC.
Obama may or may not be eligible. If his parents were not married and he was born in the USA, he is probably eligible. Of course he has spent hundreds of thousands of dollars to prevent reasonable documentation regarding his birth from being disclosed. This smells rotten. Something is not right there. There is an open question about the difference between birth information being ‘recorded’ or ‘filed’ with the State of Hawaii.
I applaud the Indiana Court of Appeals for ruling on this issue, but I disagree strongly with their conclusions.
November 18, 2009, 1:47 pmU.Va. Grad says:
It appears the plaintiffs never claimed he wasn’t. They hung their hat on the “dad was a British citizen” argument, not the “Obama was born in Kenya or Indonesia or wherever” argument. The court can’t pass judgment on issues not before it.
November 18, 2009, 2:01 pmDavid Chesler says:
That’s cogent, but it’s not supported.
The Indiana court used a standard anti-birther line of reasoning: Constitution says NBC, 14th A says jus solis, Ark seals it. None of those appear to have any dual-citizen exception, or mulatto exception, or liberal post-American charisma-over-experience exception.
November 18, 2009, 2:29 pmCan't find a good name says:
On the McCain eligibility issue, while the law at the time of McCain’s birth may not have clearly indicated that he was a natural born citizen, finding that he wasn’t a natural born citizen would lead to absurd results. At the time of McCain’s birth, a person born to two U.S. citizen parents was, obviously, a U.S. citizen if born within the United States. Furthermore, at the time, a person born to two U.S. citizen parents was also a U.S. citizen if born in an unequivocally foreign country like France or Mexico or China.
The idea that a person born in an unincorporated U.S. territory to two U.S. parents was not a U.S. citizen would be absurd. That logic would suggest that if Roberta McCain wanted her son to be a natural born U.S. citizen, she should have left U.S. territory and gone to give birth in a foreign country instead. I can’t see any argument to support that idea.
November 18, 2009, 2:34 pmPersonFromPorlock says:
Let me put in my usual observation that everyone on both sides of the ‘birther’ issue is a piker: if we read Article II, Section 1 precisely, no president since Martin Van Buren has been qualified to hold that office.
November 18, 2009, 2:44 pmDotar Sojat says:
Well, we could just have a little peek at the certificate that has not been released by the hospital in Hawaii and that would clear it up. Then everyone could go home. Its the “here is what it says” gambit that folks’ bowels in an uproar.
November 18, 2009, 3:31 pmlicrimlawyer says:
How was Chester Arthur’s father an Irish citizen? At the time, the British claimed to be sovereign in Ireland. As a matter of fact, that is why my ancestors left Ireland and came to the U.S., they didn’t like the Brits very much.
November 18, 2009, 3:50 pmOren says:
Presumably that was repealed by Section 1 of the 14th Amendment.
November 18, 2009, 4:57 pmJ. Aldridge says:
That corrupt ruling in Wong Kim Ark says no.
November 18, 2009, 5:03 pmDavid Nieporent says:
No such provision appears anywhere in the Constitution.
November 18, 2009, 5:32 pmDavid Nieporent says:
You never do; no reason to start now.
For instance, that claim about “the common law” is fiction.
November 18, 2009, 5:35 pmOren says:
The says, in no uncertain terms, that all persons born in the US are citizens of the US. It’s hard to reason around that fairly straightforward prescription, but I do commend you for bravery in the face of overwhelming odds.
November 18, 2009, 5:49 pmTim Gadsden says:
The 14th amendment does not use the term NBC at all – never – not once. We all agree that those who are naturalized are not eligible to be president because they are not NBC? So when the 14th says “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens” it is referring to a class called ‘citizen’ that is different than NBC even though both those born and naturalized are members of the citizen class. De Vattel’s Law of Nations provides the definition used when the Constitution was written. see § 212. Citizens and natives. de Vattel unequivocally believed that both jus sanguinis (right of blood) and jus soli (right of birthplace) were requirements to be natural born citizens not simply jus soli.
These are the words of John Bingham credited as the father of the 14th Amendment. Mr. Bingham said in 1866 while speaking to the first session of the 39th Congress:
Bingham clearly states the definition of term NBC, and that term does not appear in the XIV Amendment. The separate and less specific term ‘citizen’ is used instead. The XIV Amendment did not (and could not) alter the definition of NBC, nor did it supercede the requirement from Article II.
Allegiance and Jurisdiction, as used in the 14th Amendment is to be interpreted as Judge Gray in US v Wong Kim Ark : “[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.
Curiously, Justice Gray who ruled in KWA was nominated by Chester Arthur who had good reason to desire that citizens born of non-citizen parents be eligible for the presidency, because he was one and no one knew it. Quid Pro Quo? Who knows?
No one at the time that the Constitution was written would have agreed with Justice Gray in KWA. The man who wrote the 14th Amendment didn’t agree with Justice Gray. KWA was a citizen, but not an NBC. Justice Gray’s decision was wrong.
November 18, 2009, 6:00 pmJ. Aldridge says:
Gray in Wong Kim Ark:
Why is the court “presuming” what the words might have been understood to mean without reading what Congress said they meant?
Yup, a real corrupt ruling.
November 18, 2009, 6:06 pmTim Gadsden says:
Of course not. Everyone knew what it meant. The Framers used de Vattel’s Law of Nations as a baseline and even referenced it in Article 1, Section 8 “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;”.
November 18, 2009, 6:06 pmTim Gadsden says:
Clearly Bingham’s statements were not in alignment with the ruling.
November 18, 2009, 6:09 pmJ. Aldridge says:
Gray said he was an alien in Wilkins, and a citizen in Wong. One mixed up dude.
November 18, 2009, 6:10 pmTim Gadsden says:
Sen. Leahy Says Obama Not Eligible
On April 10, 2008, Sens. Patrick Leahy (D-VT) and Claire McCaskill (D-MO) introduced a resolution expressing the sense of the U.S. Senate that presidential candidate Sen. John McCain (R-AZ) was a ‘natural born Citizen,’ as specified in the Constitution and eligible to run for President.
“Because he was born to American citizens, there is no doubt in my mind that Senator McCain is a natural born citizen,” said Leahy. “I expect that this will be a unanimous resolution of the Senate.”
At a Judiciary Committee hearing on April 3, Leahy asked Homeland Security Secretary Michael Chertoff, himself a former Federal judge, if he had doubts that McCain was eligible to serve as President.
“My assumption and my understanding is that if you are born of American parents, you are naturally a natural-born American citizen,” Chertoff replied.
“That is mine, too,” said Leahy.
What’s interesting here is that Sen. Leahy, the Chairman of the Senate Judiciary, confirms that a “natural born” citizen is the child of American citizen parents.
Parents — that’s two. That’s BOTH parents.
Every time the words, “citizen” and “parent,” are used by Sen. Leahy and Sec. Chertoff, the plural case, “citizens” and “parents,” was used. The plural case is the operative case.
It is Sen. Leahy’s opinion — his own recorded words, on his U. S. Senate website — that Barack Obama is not a “natural born” citizen, and therefore not eligible to serve as Commander-in-Chief, regardless of his birthplace.
Obama had one American parent –singular — his mother. His father was a citizen of Kenya, and a subject of Great Britain.
Obama, himself, “at birth,” was a citizen of Kenya, and a subject of Great Britain — he says so on his own campaign website. This fact introduces the concept of “divided loyalties,” — the reason the founders created the eligibility requirement in the first place — a fact that further underlines Obama’s ineligibility.
The source of this information is Sen. Leahy’s own website. The webpage contains a statement about the resolution; the resolution, itself; the Statement Of Senator Patrick Leahy (D-Vt.); and an excerpt of Sec. Chertoff’s testimony.
The plural word “parents” is used four times. When used to identify the parents, the word “citizens” is used five times. That’s nine times that Sen. Leahy, on his own website describes the eligibility requirement. There is NO PLACE in any of these four documents where the singular case of “parent” or “citizen” is used as in reference to presidential eligibility.
Now, I am not of the opinion that Congress has the right or power to determine who is or is not NBC, but when discussing NBC they argued against Obama’s eligibility.
As for McCain, if he gained the citizenship of Panama at his birth, he is not NBC.
November 18, 2009, 6:18 pmJ. Aldridge says:
Sen. Trumbull: “If the negro or white man belonged to a foreign Government he would not be a citizen.”
November 18, 2009, 6:21 pmdearieme says:
I have no reason to suppose that Obama was born outside the USA. I have no reason to suppose that he isn’t a natural-born citizen. But I’d still love to know what he’s hiding on his birth certificate. That isn’t a “birther” point – it’s a “having become familiar with the ways of the world” point.
November 18, 2009, 6:43 pmTim Gadsden says:
Naturalization Act of 1790:
“the 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.”
Naturalization Act of 1795:
“the 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 borncitizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”This is still an act of Congress which cannot change the meanings of the words used by the Framers of the Constitution in Article II, but it again shows “children of citizens” not “children of a citizen” being a criterion of import. Also of interest that the intended natural born citizenship was passed-on by the father not the mother.
November 18, 2009, 6:54 pmCJColucci says:
I have hearsay information (though admissible under the pedigree exception) that I was born in Monterey, California, in 1953. I have never seen my actual birth certificate or a certified copy, though I got a certificate attesting to its existence nearly four decades ago, which, apparently, satisfied the Department of State. Except for the clerk who had to look in the records then to certify the existence of my birth certificate, I doubt that anyone has seen it in over half a century. How different is that from anyone else’s experience here?
November 18, 2009, 7:20 pmDavid Nieporent says:
Sigh. Yet another birther/tax protester who doesn’t understand basic logic.
“If A, then B” is not the same thing as “if not A then not B.”
The child of two parents = NBC does not mean that the child of one parent is not a NBC.
November 18, 2009, 7:46 pmDavid Nieporent says:
This has been yet another edition of “Aldridge parrots another quote from PA Madison that doesn’t mean whatever Aldridge thinks it means.” Tune in tomorrow for his claim that Joseph Bingham saying that the 14th amendment incorporates the first eight amendments doesn’t mean that Bingham thought that the 14th amendment incorporated the first eight amendments.
November 18, 2009, 7:50 pmChuckles says:
David Nieporent,
By your statement “The child of two parents = NBC does not mean that the child of one parent is not a NBC.” are you saying that BO was a case of immaculate conception?
November 18, 2009, 7:56 pmPersonFromPorlock says:
If ‘citizens’ vs. ‘a citizen’ is important, wouldn’t ‘children’ vs. ‘a child’ be important too? Apparently a sole child born overseas gets no citizenship!
November 18, 2009, 8:06 pmMark Field says:
As David Nieporent has already pointed out, the original statement is wrong about the common law. There’s actually a case from VA about 1650 so holding. VA had to pass a statute to change the law.
November 18, 2009, 8:10 pmDavid Nieporent says:
First, de Vattel, which we know no Birther has ever read, doesn’t say anything of the kind; he wasn’t even writing in English and so didn’t use the phrase ‘natural born citizen.” Nor is there any evidence that the founders were using De Vattel’s book as a reference on the topic; his book was about natural law.
Second, you seem to think there are multiple categories of citizenship; there aren’t. There are only two: natural born or naturalized. Either you were a citizen at birth — which is all “natural born” means, your attempt to confuse the issue notwithstanding — or you became one later. These are 100% identical in the U.S., except for the limited exception of eligibility to the presidency.
November 18, 2009, 8:13 pmMike S. says:
I thought the opinion was the equivalent of a 200 page monograph proving that 2+2=4. But after reading the comments, I guess some people need that.
I suppose next we will see claims that someone who was conceived by artificial insemination, or who was born by C-section or even with use of anesthesia isn’t a “naturally born citizen”
November 18, 2009, 8:21 pmJ. Aldridge says:
Sen. Trumbull:
Sen. Howard:
What else could it mean? Oh thats right, to the looney left it means they are only talking about foreign ministers and ambassadors. LOL
November 18, 2009, 8:21 pmTim Gadsden says:
John Jay in written conversation with Geo. Washington:
[emphasis mine. ref: Jay Letter]
It seems to me that allowing a president with U.S. citizenship conferred by only one citizen parent, with foreign citizenship conferred by the other parent, would necessarily be a weak “check on the admission of Foreigners”. If Bin Laden fathered a child of a U.S. citizen mother…
It is clear by the words of this Framer, and first Chief Justice, that any foreign citizenship and natural born citizen are mutually exclusive. Thus my reading of the phrase as written “parents” not an implied “parents or a parent”. Remember de Vattel was a glossary of terms and, as such, provided the complete definition. If he meant “parents or a parent”, he would necessarily have said it.
Rather if A=B, then B=A. We didn’t start with a premise of IF Two Citizen Parents THEN NBC, we started with a definition, Two Citizen Parents and Born In USA = NBC. Equals, equivalence, ‘is defined as’. Nice try though…
November 18, 2009, 8:26 pmPreston says:
Poor little crazy Birthers, Judge Land and now judge Carter, smack down the crazies (case dismissed),
Not even “Fake News” Bill O’Reilly believes the crazies, how funny.
http://belowthebeltway.com/2009/10/29/bill-oreilly-slams-orly-taitz/
To all the birthers in La, La Land, it is on you to prove to all of us that your assertion is true (TOUGH WHEN YOU KEEP LOSING CASES), if there are people who were there and support your position then show us the video (everyone has a price), either put up or frankly shut-up. I heard Orly Taitz, is selling a tape (I think it’s called “Money, Lies and Video tape”). She is from Orange County, CA, now I know what the mean when they say “behind the Orange Curtain”, when they talk about Orange County, the captial of Conspiracy Theories. You know Obama has a passport, he travel abroad before he was a Senator, but I guess they were in on it.
In my opinion the Republican Party has been taken over the most extreme religious right (people who love to push their beliefs on others while trying to take away the rights of those they just hate) and that’s who they need to extract from their party if they real want to win. Good Luck, because as they said in WACO, “We Ain’t Coming Out”.
I heard that she now wants to investigate the “Republican 2009 Summer of Love” list: Assemblyman, Michael D. Duvall (CA), Senator John Ensign (NV), Senator Paul Stanley (TN), Governor Mark Stanford (SC), Board of Ed Chair, and Kristin Maguire AKA Bridget Keeney (SC).
November 18, 2009, 8:27 pmTim Gadsden says:
I disagree. The Constitution only uses NBC in one place. Exactly one, and the Naturalization Acts of 1790 and 1795, clearly differentiate between them, else there was no need to change the text in the revised law.
Also, look at the progression between the requirements for a U.S. Congressman, then U.S. Senator, then U.S. President. The requirements get progressively more rigid. The fact that NBC is only used in a requirement on the president implies that it is in some way more restrictive than citizen. [This is admittedly a weaker argument.]
November 18, 2009, 8:37 pmCareless says:
Remarkably and completely unexpectedly, the weirdest thing in this thread is David Nieporent being called a “loony lefty”
November 18, 2009, 8:58 pmSara says:
J. Aldridge: What are your common law citations that progeny of inter-racial couples are not citizens?
November 18, 2009, 9:01 pmDavid Nieporent says:
Presumably the same thing that George Bush, Jimmy Carter, and Ronald Reagan — none of whom released their birth certificates — were hiding.
November 18, 2009, 9:01 pmMalvolio says:
God, I love optimism, particularly that crunchy noise it makes when it’s crushed.
I’ve heard different stories about exactly what document is supposed to exist, but if there is any currently unreleased official document that shows Obama’s birth place and such document is released at any point in the future, I make two predictions:
1. It will show him being born in Honolulu; and
2. it will be rejected by the Birthers as fraudulent, forged, nonauthoritative, or otherwise unacceptable.
I am willing to put any reasonable sum on it at, say, 20-to-1 odds.
November 18, 2009, 9:12 pmDavid Chesler says:
I suppose if we take US v Wong Kim Ark literally, only children of Chinese citizens are citizens by being born here.
In reading these, it seems that citizenship passed only through fathers, not mothers. I’m not surprised that at a time when women couldn’t vote, citizenship passed only by the father. There are other traditional statuses that pass through only the father or only the mother.
I’d heard that dual citizenship wasn’t permitted by the US until recently, so the older writings wouldn’t have talked about that much either.
The very on-point statement is in the letter from AG Pierrepont quoted in Perkins v. Elg, “Young Steinkauler is a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States; but the father, in accordance with the treaty and the laws, has renounced his American citizenship and his American allegiance and has acquired for himself and his son German citizenship and the rights which it carries and he must take the burdens as well as the advantages.”
Gadsden: We all agree that those who are naturalized are not eligible to be president because they are not NBC? So when the 14th says “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens” it is referring to a class called ‘citizen’ that is different than NBC even though both those born and naturalized are members of the citizen class.
Citizen is a superset of NBC. All NBC are citizens. Some citizens are not NBC, namely those citizens who are naturalized citizens.
November 18, 2009, 9:20 pmbyomtov says:
Tim Gadsden,
It seems to me that allowing a president with U.S. citizenship conferred by only one citizen parent, with foreign citizenship conferred by the other parent, would necessarily be a weak “check on the admission of Foreigners”. If Bin Laden fathered a child of a U.S. citizen mother…
You are entitled to your opinion, but why you think that it has any legal force is a mystery. And if you don’t understand what David Nieporent is saying you might want to study the difference between necessary and sufficient conditions. Your lengthy comment about Leahy suggests that this distinction has escaped you.
November 18, 2009, 9:23 pmTim Gadsden says:
The birthers may be answered by a birth certificate, but the dualers will not be, unless it shows that his father was, in fact, a U.S. citizen.
Admittedly, there has been a lot of funny business and obfuscation by Hawaiian officials that will certainly call into question anything they may have been able to manipulate, such as database records. Assuming the jpg we have been directed to view was made from an authentic document, it is a document that is derived from a database, not an original document. Bottom line is that unless the original cert shows that he was born outside the U.S., thus proving not NBC, it will not prove NBC if it contains the same data as the database report we have been directed to view.
November 18, 2009, 9:39 pmMike S. says:
The fact that NBC is only used in a requirement on the president implies that it is in some way more restrictive than citizen. [This is admittedly a weaker argument.] Well, yes. Naturalized citizens are eligible to run for Congress or the Senate; you have to be a citizen from birth (or the creation of the US, wise guys) to run for president. Why anyone would suppose there is some category of people who are citizens from birth but not “natural born citizens” is beyond me. By the way, the Constitution does not preclude dual citizens from running for president, provided they were born citizens of the US.
November 18, 2009, 9:56 pmCornellian says:
By the definitions used by the Founding Fathers, dual-citizenship was a disqualifying condition for the presidency.
I have my doubts, but even if I believed you, that would only be relevant if Obama’s father were running for the Presidency.
Are you suggesting that any country in the world can preclude any American from running for President just by passing a law conferring citizenship on that person? Could they bar everyone on the US from running by passing a law saying all US citizens are also citizens of that other country from birth?
November 19, 2009, 2:54 amCornellian says:
I seem to recall former Virginia Senator George Allen’s mother is foreign born. I guess it’s a good thing he’s no longer a serious candidate for the Republican nomination, because he wouldn’t be eligible to be President anyway, right?
November 19, 2009, 2:56 amRicardo says:
Exhibit A: Certification of Live Birth issued by Hawaii Department of Health for Barack Hussein Obama II
Note the language at the bottom, “This copy serves as prima facie evidence of the fact of birth in any court proceeding.” I’m no lawyer but that seems pretty clear to me: the court did not decide on the facts of Obama’s birth in Hawaii because it does not need to. It is up to the other side to prove he was not born in Hawaii.
November 19, 2009, 3:22 amNickM says:
It will prove he was born in a hospital, not a manger, thus disappointing his loonier fans.
I’m not sure which group is more annoying; the “birthers” who envision some grand conspiracy that has involved the Hawaiian government for the last four and one-half decades, or the “birthers” who call themselves “dualers” and just insist that 2 centuries of American law are meaningless because they say so.
The scariest thing IMO is that if you add up the (fairly equivalent in size) groups of “birthers” and Truthinessers (I use this name because their truth is unencumbered by facts), you may have a majority of the population.
Oh, and David, is there room for more of us to join you on the new “loony left”?
Nick
November 19, 2009, 3:41 amRicardo says:
Here’s a perfect illustration of the problem of “original intent”:
“The children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens.” — Senator John Conness, during debate over the 14th Amendment
Some in the debate felt that the 14th Amendment would not grant citizenship to the children of foreigners. Others felt that it would. What to do? How about actually read the text of the %@!^ing amendment? If Congress felt that the citizenship clause was vague, it could have rewritten it to make clear that a child born in the U.S. of one or both parents who owe allegiance to another country is not a citizen under the amendment. Nobody ever rewrote the amendment or felt a rewrite was necessary in light of the debate. That means we have to rely on the meaning of the words in the text, not try to divine some collective intent of Congress at the time. And that is what the Wong Kim Ark court did.
November 19, 2009, 4:13 amRicardo says:
That does appear to be what is suggested. This is deeply ironic as I suspect many of the “dualers” in other contexts would be very hostile toward the notion that “foreign law” should be given any weight by U.S. courts. Yet that is exactly what they are asking courts to do, by inquiring into any applicable foreign law that may have at one point conferred foreign nationality on a Presidential candidate. Aside from basing our own constitutional requirements on the vagaries of foreign law, this also has perverse results.
At one extreme, for instance, India bans dual citizenship and makes it quite tough for children born of Indian parents outside the territory of India to claim citizenship. A child born in the U.S. of Indian parents would have no claim to foreign citizenship. Yet some here would want to say that person is not a natural born citizen despite not having a claim to citizenship (natural-born or otherwise) in any other country.
At the other extreme, I believe the Islamic Republic of Iran insists that every child of an Iranian male citizen is automatically an Iranian citizen regardless of birthplace. Not only that but it makes it impossible to ever renounce Iranian citizenship and refuses to recognize any other citizenship an Iranian citizen may ever acquire. So if an Iranian man is naturalized as a U.S. citizen, lives here for decades, marries a native-born American and has a child by that woman, according to some here, the child should not be considered a natural born citizen or even a U.S. citizen. And that consideration ought to be based on the cranks in Tehran and their ludicrous laws.
November 19, 2009, 4:28 amDavid Nieporent says:
Hey, it’s a little crowded over here; go find your own utterly-common sense position to be attacked by conspiracy nuts for. Maybe you can find some moon-landing-was-faked people to debate.
By the way, for those of you who, inexplicably, actually want a detailed exploration of why Aldridge/birther (*) claims are false, this Volokh thread explored them in detail, including the lack of accuracy or proper context of
manyall of the supposed historical quotes they supply. (Unfortunately, the VC switchover to WordPress has bolluxed the formatting, but the content is all there.) Added bonus: it may be the only thread ever in which JukeBoxGrad and I are on the same side.(*) Aldridge is a birther, but his eccentricities in legal analysis are much broader than theirs.
November 19, 2009, 4:33 amDavid Nieporent says:
Actually, almost all people on both sides agreed that it would; the debate was more over whether that was a good thing than over whether it was true. None of the quotes trotted out by Aldridge actually say what he claims they say, when one reads the original sources rather than the excerpts he’s read on some blog. The real debate was over border cases, meaning primarily Indians (that is, “native Americans”), because of their sui generis status in American law.
November 19, 2009, 4:46 amDavid Chesler says:
Threadwinner!
November 19, 2009, 6:24 amRicardo says:
Tim Gadsen, I confess after reading your comments I still have no idea what you actually believe about natural born citizenship. First, you reference de Vattel in saying that one must both be born in the U.S. and have U.S. citizen parents (with emphasis on both parents) to qualify as a natural born citizen (this wasn’t the case in Britain either under common or statutory law at the time of Independence but let’s leave that aside). Then you approvingly quote Sen. Leahy in justifying McCain’s claim to natural born citizenship, despite the fact that he was not born within the incorporated territory of the U.S. and thus arguably fails de Vattel’s definition. Then you say that maybe Obama would be a natural born citizen if his mother was not married to Obama Sr. at the time of birth (no authority given and way to promote family values there).
Just what exactly is the theory here? And should we just ignore de Vattel when he says, “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”?
November 19, 2009, 9:07 amalex says:
The obsessive regard for the wording of the Constitution is never other than ironic, since the “Founders” spent almost no time debating the actual language, once they had settled important things like giving slaveholders extra votes. Gouverneur Morris was more or less left to his own devices to put in any fine phrase he chose, some of which echo nothing more than his own tastes in reading.
November 19, 2009, 1:38 pmRichard Aubrey says:
Colucci,
November 19, 2009, 2:12 pmA couple of anecdotes as to your cert question.
My daughter, when seeking a CA drivers license, was required to show a passport or a BC. The BC was handier, the passport having been mistakenly issued to a “male”, so we sent it. If my daughter had had black hair and an inability to speak English, no documentation would have been necessary.
I’ve used the BC to get a passport and will probably have to dig it out to renew the PP.
My wife and I have ours handy. Scratch that. It would probably take a weekend to find them, but we know they’re around here someplace.
Most people I know, when the subject arises, have said they have their cert available.
I figure that Obama is trying to hide something–no idea what–which could be legally or personally embarrassing, which is why he’s spending the money, or he’s stringing the birthers along for some future political gotcha! Seems an odd use of campaign funds.
Guesty says:
I recently had to order a new birth certificate. It was the computer print out type, like Obama’s, not a certified copy of the original.
November 19, 2009, 2:37 pmRicardo says:
Nope, your expired or almost-expired passport is sufficient identification. You only need a birth certificate the first time you apply for a passport. After that, it is a largely unnecessary document. And this business about people with “black hair and an inability to speak English” being able to get California driver’s licenses without any documentation is nonsense. The requirements for a license are listed here.
November 19, 2009, 8:55 pmJ. Aldridge says:
Oh the denial from David continues…..
Ok, to humor you, lets pretend location automatically provides for allegiance. When I step over the Mexican/American border my allegiance automatically changes from American to Mexican.
November 20, 2009, 12:18 amJ. Aldridge says:
Why do you say that? I think they are all fruitcakes, much like you.
November 20, 2009, 12:27 amRicardo says:
We’re still waiting for the citation about black people not being citizens at common law. While waiting for that, here are some quotes from the decision:
Do you have any references at all to common law cases to refute these claims?
November 20, 2009, 1:02 amDavid Nieporent says:
I have no idea what this means, or how you think it’s relevant to Obama. You do understand what “allegiance” refers to in this context, right? You are subject to the jurisdiction of Mexico the moment you step over the Mexican border.
November 20, 2009, 6:59 amDavid Nieporent says:
One of the hallmarks of the nutty legal fringe is to find a quote — any quote, because remember, if ten people say X and one person says Y, you can just cite the one person who says Y without regard for context or whether he was right or not — that doesn’t say what they want but somehow leads them to the conclusion they want. They never find an actual quote that says, for instance, “The child of one citizen and one non-citizen born in the U.S. is not a citizen.” That would be too easy.
But at the same time, they won’t believe a contrary claim unless their opponents can provide an exact quote; if you produce a quote that says everyone born here is a citizen except Indians, they say, “But it doesn’t say ‘everyone born here of one citizen and one non-citizen.” If you find a quote that says, “Everyone, and we mean everyone,” they say, “But it doesn’t mention Barack Obama’s name specifically, so it doesn’t count.”
November 20, 2009, 7:06 amRichard Aubrey says:
Ricardo.
November 20, 2009, 9:37 amWRT the CA license. I believe you or my daughter–who taught high school there.
Hmm?
Or her colleagues with whom my wife and I had a few hours of conversation.
Or my niece in LAUSD.
Should I go on?
The regs might be as you say–jury’s out on that–but the requirement not to discriminate trumps them in the real world.
CJColucci says:
Richard Aubrey:
November 20, 2009, 11:47 amAre you sure that the documents you and your family have are copies of your actual birth certificates? Not copies of a certification of their existence and contents?
NickM says:
Ricardo – there is case law supporting Aldridge – Taney’s majority opinion in Dred Scott, which held that laws referencing “white male citizens” were proof that blacks could not be citizens. He turned logic and reading comprehension upside down to get that result. The 2 concurring opinions did not join in that argument, but it still attracted 5 votes.
Nick
November 20, 2009, 12:44 pmJ. Aldridge says:
See also Ludlam v. Ludlam (31 Barb., 486): “The universal maxim of the common law being partus sequitur patrem. It is sufficient for the application of this doctrine that the father should be a subject lawfully, and without breach of his allegiance beyond sea, no matter what may be the condition of the mother.”
November 20, 2009, 2:15 pmyo says:
This opinion, black’s law dictionary, sen hatch’s supposed comments, etc., are all worth less than nothing.
only the constitution and supreme court rulings matter. and the supreme court has stated explicitly that there is “doubt” as to whether someone born of a foreign parent is a nbc.
in addition, as has been stated, that colb is worthless in determing if someone is a nbc. you can get one of those if you’re born outside of the country. only more detailed vital records will prove he was born in hawaii.
this is not going to end well. when the constitution is spit on so brazenly, there will eventually be an eruption of some kind.
November 20, 2009, 2:43 pmRicardo says:
True but that is not common law. By default, common law appeared to grant citizenship to everyone born within the realm aside from those born to enemy soldiers and diplomats. This common law rule was overridden by the early statutory laws of the American colonies which in turn became part of the statutory law of the several states. Dred Scott rests on those statutory laws, not the old common law rule.
Wong Kim Ark interpreted the 14th Amendment as forcing the country to revert back to the common law rule in interpreting “subject to the jurisdiction thereof” for the purposes of citizenship. If Aldridge wants to argue for another interpretation of this phrase, he can’t well refer to the Dred Scott decision or the pre-Civil War laws of the slave states to make his argument since it was the express intent of the Amendment to override these legal principles.
November 21, 2009, 1:56 amRicardo says:
Ludlam stated the following doctrine: If a child’s father is a citizen of the country, then the child is a citizen of the country regardless of the birthplace of the child.
It did not state the opposite and say that a citizen father was necessary for a child to acquire citizenship. It said it was sufficient.
November 21, 2009, 2:06 amJ. Aldridge says:
I should had been more clearer: I mentioned it to show one of the common law exceptions to citizenship by birth as requested: partus sequitur patrem.
November 21, 2009, 2:16 amGuy says:
Wait, if Obama isn’t a natural born citizen because he isn’t subject to the jurisdiction of the United States, then that means no Court can declare him not to be president, because, after all, he’s not subject to their jurisdiction. As near as I can tell, our only legal recourse is to inform the United Kingdom that he is a persona non grata, except that duty belongs to the unlawfully appointed Secretary of State Hillary Clinton. I guess that means we’ve been officially reconquered by England.
November 21, 2009, 6:00 amJust saying... says:
It’s there.
November 22, 2009, 4:09 pmsmrstrauss says:
Re: “All this is just a diversion from the real question viz what is it on Obama’s birth certificate that is so embarrassing that he’s determined to hide it?”
He has NOT hidden it. He has posted and shown to both FactCheck and Politifact the official birth certificate of Hawaii, which is now the only birth certificate that Hawaii sends out. It no longer sends out copies of the original. (http://www.starbulletin.com/columnists/kokualine/20090606_kokua_line.html)
And that birth certificate is accepted as proof of birth in the USA by the US State Department. And the facts on that birth certificate were twice confirmed by the officials in Hawaii.
November 27, 2009, 4:09 pmsmrstrauss says:
Re: ” colb is worthless in determing if someone is a nbc. you can get one of those if you’re born outside of the country.”
NO you can’t. YOu cannot get a COLB that says “born in Hawaii” if you were born outside of Hawaii.
And, in 1961 when Obama was born, you could not even get that. The provision to allow foreign births to be registered in Hawaii was not passed until 1982, more than twenty years after Obama’s birth.
November 27, 2009, 4:13 pmDCH says:
” colb is worthless in determing if someone is a nbc. you can get one of those if you’re born outside of the country.”
1. Ok PROVE that based on documents from the Hawaiian government.
They do have a thing called COFB – its for foreign born individuals (e.g. adoptees), duh. Oh Obama’s sister was born in Indonsia and has no Hawaiian birth records on file (Source: Hawaii DoH vital records index).
2. Produce an example of one please. (Never been done by birther yet)
————————————————————
Birtherism is a small time con game. Keep giving money to those grifter Birther lawyers who file frivolous birther cases (costs virtually nothing, you know) knowing they can just plead for more ‘donations’ on paypal when the court dismisses the cases (100% predictable).
The last thing these grifters want is an actual trial.
1. they will have to spend money and time.
2. they will lose.
3. A loss means they can’t refile the same cases again in different courts and they are incapable of succeding in appeals court (way too hard).
4.thus ending the easy money paypal income stream.
Its a internet income machine. Classic con – rip off thousands of small donations and it adds up. You don’t even have to meet the mark, they FIND you and send money via pay-pal. Local law enforcement is not going to help you if the con man is far away. Wish I’d thought of it.
February 20, 2010, 8:52 am