How Local Republicans Fueled the ‘Birther’ Fire

For all of the constitutional idiocy that birthers like Taitz spew about the meaning of “natural born citizen,” perhaps no one put it better than Judge Lewis H. Sandford of the New York Chancery Court back in 1844…

Lynch v. Clarke, (N.Y. Chancery 1844) 1 Sandf. Ch. 583:

“And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. “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,” &c. The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not. The position would be decisive in his favor that by the rule of common law, in force when the constitution was adopted, he is a citizen.

“Moreover, the absence of any avowal or expression in the constitution, of a design to affect the existing law of the country on this subject, is conclusive against the existence of such design. It is inconceivable that the representatives of the thirteen sovereign states, assembled in convention for the purpose of framing a confederation and union for national purposes, should have intended to subvert the long established rule of law governing their constituents on a question of such great moment to them all, without solemnly providing for the change in the constitution; still more that they should have come to that conclusion without even once declaring their object.”

Gee, Dave. Orly won't talk to you anymore? Was it something you said? Or is it just that you, along with Rachel Maddow, Ben Smith and Keith Olbermann are “brownshirts”? LOL!!!

I know it's bad, but the birthers are just so entertaining to me.

Taitz is not the only one who runs in retreat from her critics. Leo Donofrio likes to talk up the issue of “natural born citizen” on his site, but from personal experience I can attest that when he is presented with arguments that don't support his world view, he deletes them from his blog and insults the bearer of the bad news.

Who even needs the New York chancery court? The U.S. Supreme Court adopted this very reasoning and conclusion in its unanimous opinion in United States v. Wong Kim Ark, in 1898. Taitz has evidently never read it, and neither has any birther I've ever encountered.

Birthers have to be confronted with an avalanche of data, as one or two court decisions aren't enough, to dispell the myth that de Vattel's concept of natural born citizen was the one accepted by the United States. Here's another quote I like, this time from the Kentucky Supreme Court in 1822:

Amy v. Smith, 11 Ky. 326, 340 (Ky. 1822)

The 5th section of the 2d article provides, “that no person except a natural born citizen,” shall become president. A plain acknowledgment, that a man may become a citizen by birth, and that he may be born such.

Did Fugate's letter to the Kentucky attorney general truly reflect a “call for” Obama's eligibility to be investigated? All the letter says is essentially, “Some people came to our office whining about Obama. I have no investigative powers. I'm referring them to you.”

Where's the “calling for” part?

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This is not true – Phil Berg brought it to the courts – http://www.obamacrimes.com
and he is a Democrat not a Republican..- matter if fact he was a high end Dem…I don't like side or party…people are voting for candidates like they are rock stars…not lookig at the qualifications…or really understanding what's at stake…People are voting for presdients the same way they did in high school – by who comes across as the better song and dance man…rather than who is the best person to stop the FED from putting us into recessions and stealing our jobs and letting illegals cross the borhers to vote. The good people of America that worked their rear ends off to build this country, were loyal to the companies they worked for. had a decent savings and they played by the rules and put their money into the S/S and Medicare system…and along comes a Communtiy Organizer who has shady friends and refuses to show his proof of “natural born” status – his college records that could prove he was getting loans for foreign students…and traveling in and out of Amreica on that passport to shut up relatives with big mouths…and NO ONE court in our Justice system allows a hearing to prove the Birthers wrong? What's wrong with this picture…duh – everything. Wake up America -you have been scammed by both major parties that only have their own back pockets best interests in mind and say to hell with our Bill of Riighs, US Constition and the People…You are either with them or againt them mindset..

Read the legal arguments surrounding Barack Obama's (1) natural (2) born (3) citizenship status. Hint: You can't pick and choose only the part of the 3-word phrase and keep putting that over on ill-informed Americans. Read the arguments on legal blogs, submitted by legal scholars from both parties, who find the issue compelling and unsettled. REALLY, read the arguments and follow them and then opine. Anything short of that effort doesn't justify the cyberspace you're wasting when not adequately informed to merit having an opinion.

Of course, that requires that people actually read the Constitution and subsequent arguments and become, God forbid, actually informed…which is, I believe, the Obama administration's worst nightmare come true!

Okay, you're on.

The Constitution, Article II, Section 1, reads:

“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.”

The Supreme Court has obviously never specifically ruled on the meaning of “natural born Citizen” in a case involving presidential qualifications, because such a controversy has never been before the Court. This is not likely to change, since most citizens do not have the standing to bring the question before the court. So, at best, this is little more than a parlor game with historical interest, but it will not affect the fate of the current President of the United States, Barack Hussein Obama II.

We start from the recognition that the Court has referred to the “natural born Citizen” clause in dicta on a number of occasions in cases involving citizenship. That alone is suggestive of the fact that the Court views the relationship between citizenship laws and presidential eligibility as something less than totally distinct concepts.

The Court has acknowledged, as have we all, that the Constitution is silent on the meaning of “natural born Citizen.” “Resort must be had elsewhere to ascertain that,” noted the Court in Minor v. Happersett in 1875. So what did the Founding Fathers understand the term to mean, and how did courts in successive years understand it?

Birthers frequently claim that the Founding Fathers were very familiar with de Vattel's 1758 treaties, The Law of Nations. This is certainly true. Toward this end, they point to the following paragraph as guiding the Founders on the meaning of “natural born Citizen”:

§ 212. Of the citizens and natives.

“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 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. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”

There's one problem with the theory that this guided the Founders on the meaning of “natural born Citizen.” In 1787, contemporary translations of The Law of Nations used the original, untranslated French term indigenes, not “natural born citizens.” The latter term did not enter into English language translations until roughly 1797, a decade after the term first appeared in the Constitution.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, That the said Michael Walsh be permitted to take and subscribe the oath of allegiance to this Commonwealth, before two Justices of the Peace, quorum unus, of the county where he dwells; and thereupon, and thereafter, he shall be deemed, adjudged and taken to be a citizen of this Commonwealth, and entitled to all the liberties, rights and privileges of a natural born citizen…

February 7, 1786.”

After the Constitution was adopted, courts recognized the common law heritage of the term “natural born citizen.” Here's an excerpt from the syllabus of an 1824 U.S. Supreme Court decision:

“The statute of 11 and 1 Wm. III. c. 6., which is in force in Maryland, removes the common law disability of claiming title through an alien ancestor, but does not apply to 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 or citizen.”

M'Creery's Lessee v. Somerville, 22 U.S. 354 (1824).

Or how about this passage from the North Carolina Supreme Court from 1829:

“The country where one is born, how accidental soever his birth in that place may have been, and although his parents belong to another country, is that to which he owes allegiance. Hence the expression natural born subject or citizen, & all the relations thereout growing. To this there are but few exceptions, and they are mostly introduced by statutes and treaty regulations, such as the children of seamen and ambassadors born abroad, and the like.”

Leake v. Gilchrist, 13 N.C. 73 (1829).

In fact, the New York Court of Chancery spoke at great length about whether the use of the term “natural born Citizen” in the Constitution served to break the United States from common law tradition with regard to citizenship:

“And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. “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,” &c. The only standard which the existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not. The position would be decisive in his favor that by the rule of common law, in force when the constitution was adopted, he is a citizen.

“Moreover, the absence of any avowal or expression in the constitution, of a design to affect the existing law of the country on this subject, is conclusive against the existence of such design. It is inconceivable that the representatives of the thirteen sovereign states, assembled in convention for the purpose of framing a confederation and union for national purposes, should have intended to subvert the long established rule of law governing their constituents on a question of such great moment to them all, without solemnly providing for the change in the constitution; still more that they should have come to that conclusion without even once declaring their object.”

Lynch v. Clarke, (N.Y. Chancery 1844) 1 Sandf. Ch. 583.

In fact, early courts had little trouble interpreting the meaning of “natural born Citizen” in the Constitution:

The 5th section of the 2d article provides, “that no person except a natural born citizen,” shall become president. A plain acknowledgment, that a man may become a citizen by birth, and that he may be born such.

Amy v. Smith, 11 Ky. 326, 340 (Ky. 1822). No reference was made to a supposed two-citizen-parent requirement.

The fact is, there is abundant evidence to demonstrate that the founders adopted the common law meaning of “natural born Citizen,” and that the Fourteenth Amendment merely restated this law. The Supreme Court in Wong Kim Ark in 1898 expounded at great length on the fact that the United States retained the common law, jus soli roots of “natural born citizen.” Although the dissent cited to de Vattel in opposition to this position, the best it could argue was that the United States should adopt jus sanguinis, it never claimed that this had been the law of the land in the United States.

Over the past century, the Supreme Court has evidently had little difficulty understanding “natural born citizen” as it is used in terms of presidential qualifications to mean nothing more than the opposite of naturalized citizen, and nothing more:

The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the Constitution, by which “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;” and “the Congress shall have power to establish an uniform rule of naturalization.” Constitution, art. 2, sect. 1; art. 1, sect. 8.

Elk v. Wilkins, 112 U.S. 94, 101 (1884).

We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the “natural born” citizen is eligible to be President. Art. II, § 1.

Schneider v. Rusk, 377 U.S. 163, 165 (1964).

Apart from the passing reference to the “natural born Citizen” in the Constitution's Art. II, § 1, cl. 5, we have, in the Civil Rights Act of April 9, 1866, 14 Stat. 27, the first statutory recognition and concomitant formal definition of the citizenship status of the native born: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States . . . .” This, of course, found immediate expression in the Fourteenth Amendment, adopted in 1868, with expansion to “all persons born or naturalized in the United States . . . .”

Rogers v. Bellei, 401 U.S. 815, 829 (1971).

There's simply no doubt on the question of where the Supreme Court would land if it had to decide head-on whether a person born on U.S. soil is a “natural born Citizen.”

Well, it's getting out in the drive-by media now.

From David Hahn, “Publisher StatePaper.com ” August 5, 2009.

Publisher: Obama Should Produce Original Birth Certificate

At StatePaper.com, we know by making this statement we will be instantly tagged as “racist,” “birther,” or other pejorative terms by those who defend the President of the United States. We often defend the President and the job he is doing and are regularly lambasted for being “too liberal” or an “Obama lover” by some of our most prolific critics.

The fact in question here is the constitutional qualification of the President of the United States to hold office. With a simple nod, the President could offer the American people the best evidence, the source document(s), as he learned about at Harvard, and dispel those who question his birth as a natural born citizen. His failure to provide this best evidence, when it could be so easily done, raises only more questions, which fuels an ugly public debate.

I guess there are some things that not even a journalism school graduate can stomach.