Archive for the Uncategorized Category

We’re all blood brothers.

Posted in Uncategorized on March 13, 2012 by naturalborncitizen

 

 

 

 

 

 

 

 

 

 

 

 

 

 

After long consideration and discussion with my family, I am saying goodbye to this blog and the law. I am retiring my law license and will be concentrating on making films, and writing music.

There is no lawyer, politician or judge who will change the world into what God intended it to be – one family, one love. Angels are real. It’s gonna be a full on landing soon.

Some are in the video at the following link.

“BLOOD BROTHERS”

ONE LOVE.

Leo Donofrio

 

 

The Mr. Binney Funeral Humiliates The Reputation Of The United States Supreme Court.

Posted in Uncategorized on February 7, 2012 by naturalborncitizen

The lack of historical analysis evident in every judicial opinion which has discussed Obama’s eligibility is staggering. If you compare Judge Malihi’s recent opinion in Georgia, and the Ankeny case from Indiana, to important citizenship decisions by the U.S. Supreme Court, it becomes clear what separates the men from the boys. In a word; research.

U.S. Supreme Court opinions dodge nothing. Every issue is confronted head on. Every argument is taken into consideration, and even if they twist the facts and law to make it condone a blatant abuse of power, such as in the Kelo case, the Court doesn’t run away and hide from the most important obstacles placed in its path.

Of course, some of these decisions are obviously rigged to issue a pre-determined conclusion. The worst example of this is the racist holding in Scott v. Sandford. Still, the opinion doesn’t run and hide like a sissy from tough issues. But in confronting the racial issue, the Court gave itself and the nation a disease which led directly to civil war. This is what happens when the highest Court in the nation sells its soul. But even when the soul is sold, it’s sold with history and research that confronts the tough issues head on. You’re not left wondering what the Court thought about anything relevant to the case.

Another controversial opinion concerns U.S. v. Wong Kim Ark. The majority opinion is 55 single spaced pages long, and the dissent weighs in at 27. The majority opinion was composed by Justice Horace Gray, aka – the Legal Historian of the Supreme Court, and Father of the Historical Method. At first glance, his opinion appears to have tracked down every relevant piece of information and law necessary to a proper resolution of the case.

Indeed, Gray goes all the way back to English statutes in 1351, continues through Calvin’s Case in 1608, and drives right to the newest state court cases of the day. Nothing was avoided. That depth of research is what made the Supreme Court an icon of justice, and is severely lacking from the flimsy opinions of lower courts that have weighed in on POTUS eligibility.

Bad ass research and an intellectual capacity to delicately do ballet thereupon is what makes the Supreme Court’s opinions stand out in contrast to their lower court peers. The SCOTUS gives the appearance of true legal authority. And it’s this patented appearance of legal authority that the stability of the nation is grounded upon.

When that appearance of authority was humiliated in the Dred Scott case, all hell literally broke loose upon this country.

Unfortunately, in U.S. v. Wong Kim Ark, we have the second worst piece of stinky refuse the Court has ever passed wind upon. And the appearance of true justice has once again been utterly humiliated. Consider that Justice Gray was appointed by Chester Arthur, a man born of an alien father. And in 1898, when Wong was decided, had the public at large, and the Court at large, known that Arthur was born a British subject in the U.S., then there would have been no need to determine the citizenship fate of anyone else born in the country to alien parentage.

If alien parentage didn’t stop old Chet from being President, why should it stop anyone else from being a citizen?

Yet, Justice Gray never mentions the citizenship status of the man who appointed him. Gray controlled his own fate by presiding over an opinion, the outcome of which decided the very legitimacy of his appointment to the Supreme Court. And the appearance of impartiality has been destroyed by this sordid history. Whether Justice Gray knew Arthur was born of alien parentage is not as important as the objective appearance.

This report continues the forensic investigation of whether Supreme Court Justice Horace Gray composed the infamous opinion in U.S. v. Wong Kim Ark to subversively cure the citizenship defects – and accompanying POTUS eligibility defects – of the man who appointed him to the bench. President Chester Arthur successfully defrauded the nation as to his parental heritage which established him to have been a British subject at birth, since his father failed to naturalize in the U.S. until 1843, fourteen years after Chester was born.

Prior reports in this series discussed inexcusable misquotes with regard to Gray’s erroneous reliance upon McCreery v. Somerville, as well as the unexplained abandoning of his very own arguments and associated points of authority from Elk. v. Wilkins.

And in my Amicus Brief submitted in the recent Georgia Ballot challenges, I offered evidence that other Supreme Court opinions were abused by Justice Gray who cleverly distorted them to mean the exact opposite of what the Court actually held.

MR. BINNEY’S INFAMOUS “PAPER”.

Today, we shall strip another foundational building block from the opinion in Wong Kim Ark.  I refer to the mysterious “paper” written by Philadelphia attorney, Horace Binney, in 1853.  My research has revealed that his paper, The Alienigenae of the United States Under the Present Naturalization Laws, was published in three editions, not two, as was erroneously suggested by Justice Gray. Furthermore, Gray’s suggested chronology of publication is false.

The most important section of Binney’s paper, as it relates to Justice Gray’s opinion from Wong Kim Ark, was deleted in the third and final revision, while Justice Gray wrongly suggested that the second edition was the final one, thereby appearing to justify his reliance upon it. This is absolutely false.

The deleted section of the Binney paper was relied upon, and quoted by Gray twice in the Wong Kim Ark opinion. He quotes the passage in the body of the opinion, as well as in the very holding of the case. While Justice Gray acknowledges that the passage did not appear in the peer-reviewed American Law Register (precursor to the University of Pennsylvania Law Review) version, he suggests that the ALR version was the first edition, and that it came before the second edition relied upon by the Court so heavily in Wong Kim Ark. As you will see below, Justice Gray got that very very wrong. My research has now established with absolute certainty that the ALR version was the third and final version of the Binney paper.

Mr. Binney and his editors at the ALR deleted the infamous passage relied upon by Justice Gray in the Wong Kim Ark opinion. It did not survive the peer review process and was gutted in the third and final edition of the paper. Furthermore, the necessity for their being three versions of the same paper – all published within three months of each other – was caused by two consecutive screw ups by Binney in quoting the U.S. Naturalization Act of 1790. As we shall discuss in detail below, Binney not only misquoted the statute in the first edition, but he compounded the error by applying speculative analysis to the statute as if it contained the misquoted provision.

Imagine analysis of a statute which does not exist. That’s exactly what happened in the first edition. Then, in the second edition (relied upon so heavily by Justice Gray), Binney appears to have offered the infamous page-long footnote (on pg. 22 of the paper) as a counter-analysis to the first edition’s mistaken conclusions. Unfortunately, Mr. Binney failed to correct the misquote in the second edition as well.

Both the first and second editions, therefore, contain analysis of a statutory provision which did not exist. This, of course, makes the analysis useless. It’s based upon a fictional statutory provision, so the analysis of that non-existent provision cannot be a legal authority for anything, let alone the majority opinion of the U.S. Supreme Court in the very case which set our citizenship path for the last 114 years.

In the third and final edition of the paper, as published by the ALR, Binney’s name was deleted along with that part of the footnote relied upon twice by Justice Gray. Welcome to the wonderful world of Wong Kim Ark.

We have the sad reality of the highest court in the nation relying upon – in the most important citizenship decision in our national history – a legal authority which was deleted by the concerned author and his esteemed editors. When we add this new evidence to all of the other anomalies in the Wong Kim Ark opinion, as framed by the strange history of Chester Arthur’s citizenship status, the stench becomes unbearable. And the current United States Supreme Court should really clean it up.

ACKNOWLEDGED OBSCURITY OF THE BINNEY PAPER.

Binney was no stranger to controversy. His paper on Habeas Corpus advocated for the Government’s right to strip this most precious jewel of liberty from the populace when it saw fit. That paper was criticized heavily by his peers (although today’s federal mafia would salivate over it).

But the paper which Justice Gray relies upon, “The Alienigenae of the United States Under the Present Naturalization Laws“, self-published by Binney in Philadelphia (1853), did start upon a valid point. It reiterated the sentiment from prior authorities, which explained that there was no statute in place to naturalize the children born abroad of U.S. citizens. Binney’s paper sought to influence a correction of the law. And in 1855, the law was corrected.

JUSTICE GRAY’S EXALTED RESEARCH.

Justice Gray was a titan of the historical method, famously known as the pre-eminent historian of the Supreme Court, to which great tales have been told concerning his legendary research skills. And his knowledge of the Binney paper was apparently far advanced from that of the attorneys litigating WKA. Ark’s attorneys were not able, in 1898 – almost fifty years after Binney published the paper – to establish with any certainty that Binney had written the paper, and it was Justice Gray who was finally able to do it for them in his opinion from WKA.

There is a telling anecdote about the obscurity of Binney’s paper, memorialized by Ark’s attorney, J. Hubley Ashton, Esq., in Great American Lawyers, Volume 8:

“There was cited in the argument for the appellee in that case a paper of remarkable ability on the ‘Alienigenae of the United States’, published many years ago in the American Law Register, which had always and universally been attributed by lawyers and judges to Horace Binney, although his name was not appended to the article. As one of the counsel for the appellee, I made considerable effort to ascertain before the argument whether the great lawyer of Philadelphia had ever formally acknowledged this paper as his own, but the search for information on the subject was unavailing. My surprise was almost humiliating, I remember when I saw in the opinion of the court delivered by Mr Justice Gray, a passage with a note, from what was described by him as tha second edititon of this paper, ‘printed in pamphlet form at Philadelphia with a preface bearing Mr Binney’s signature and the date of December 1st 1853′, accompanied by the following observation of the learned judge:  ‘This paper without Mr Binney’s name, and with the note in a less complete form, and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February 1854.’ I was naturally curious to know where and how Mr Justice Gray had found this rare pamphlet, no copy of which appeared to be in any department of the Library of Congress. He told me that although he had no doubt from internal evidence and otherwise that the paper referred to was the authentic work of Mr Binney, he was indisposed to cite it as such in the opinion of the Supreme Court upon mere tradition or general belief on the subject, and that as a result of a search among some old pamphlets purchased by him many years ago, and stored away in his private library, he found the pamphlet described in his opinion, which established, of course, the authorship of the learned paper contained in it.” Id. pg. 169-170. (Emphasis added.)

So, 55 years after Binney’s paper was first released, the Library of Congress didn’t even have the original editions of the paper. The only person who did have them, according to this anecdote, was Justice Gray. He apparently had the second edition tucked away in his private library. But what about the first edition? If he was in possession of that, then his entire opinion in Wong Kim Ark is proved to be a fraud. If he knew of the true first edition, his suggestion that the ALR version was the first edition would be outright fraud. Keep this in mind as we move along to examine the text of each edition.

But first, let me stoke your paranoia. One of my favorite films is “The Ninth Gate”, wherein Johnny Depp plays a seedy rare book collector/charlatan. The plot concerns a Satanic coven, and the leader is a rich magnate who seeks to gather the only three remaining copies of an esoteric text. Depp’s character discovers, by comparing the copies, that the illustrations are ever so slightly different copy to copy. Some of them are signed by “LCF”, some not. This turns out to be Lucifer.

Besides Justice Gray’s infamous misleading quote from Binney appearing on pg. 666 of the Wong Kim Ark opinion, spookier anomalies have popped up throughout my research of the natural-born citizen issue. Of course, JustiaGate takes the prize and sets the standard for this kind of freaky malevolence. But just now it happened again with regard to the passage just quoted from the Great American Lawyers text. I downloaded the book from Google Books about eight weeks ago. And it’s to that downloaded copy that I have provided a link to above. The text is in the public domain and therefore, as of eight weeks ago, the entire book was available as a preview, and as a download from this link.

Well, it’s a good thing I downloaded it then, because as of today, Google has Justiafied the text, so that pg. 170 has been clipped from both the preview, and the downloadable version. The part about Justice Gray having the Binney paper in his private library has been scrubbed by Google as of today. Download the Google copy and compare it to the copy available here at my blog. They do not match. And this development has taken place recently, since I downloaded the full copy from Google Books just a few weeks ago. What a freak show, America. Raise the lights, dim the Twilight Zone theme, and let’s get down to business.

THE EVIDENCE.

Binney, after having published the first edition of the paper must have become acutely aware of his screw up, and quickly published a second edition which added an infamous footnote which sought to alleviate the erroneous analysis based upon the incorrect statutory quotation. Binney, however, failed to inform the reader that the note was required due to the misquote. The second edition, therefore, contains a footnote which changes the analysis of the statute. Unfortunately, the second edition also failed to correct the misquote.

This must have doubled the embarrassment of Binney, who was a very upright character. I have been to the Philadelphia Historical Society to read his personal papers, and handwritten memoirs, which illustrate he was a very decent man. I do not wish to sully his reputation, but the reputation of the paper in question, as relied upon by Gray, deserves stern negative critique. And Binney’s failure to allow his name to appear on the ALR version justifies the criticism.

I never understood why an obscure paper, rather than prior decisions of the Supreme Court, should have provided the backbone for Gray’s opinion. Up until Wong Kim Ark, there were multiple U.S. Supreme Court decisions, which held that minor children follow the political status (aka citizenship status) of their parents (see my Amicus Brief at 31-39), and that birth on the soil did not necessarily confer citizenship, unless the parents were themselves citizens. Two decisions which held America to this principle were, Inglis v. Sailors’ Snug Harbor, and Shanks v. Dupont, to which Justice Gray failed to acknowledge the majority holdings, as they directly conflicted with his opinion in WKA.

But now it has become clear that even Binney’s obscure paper should provide no support at all for Justice Gray’s opinion in Wong Kim Ark.

The footnote quoted by Justice Gray in Wong Kim Ark does not appear in the first edition of Mr. Binney’s paper. You may examine the first edition at this link to Harvard’s online collection. Additonally, I have extracted the pamphlet from a collection of Binney’s writings made available by Widener University. The full text of that document is here. And I have extracted the first edition of Binney’s paper, and uploaded it here. Go to pg. 22, that is where the statute is misquoted, as follows:

“[T]hat 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 – with a proviso, that the right of citizenship shall not descend to persons who had never been resident in the United States. 2 US Laws 83.” 

The proviso from the actual statute, however, did not require that the persons born overseas be resident in the U.S. It required that the fathers of such persons must have resided in the country:

Provided, That the right of citizenship shall not descend to persons, whose fathers have never been resident in the United States…”

Binney then went on to analyze the statute as if the misquote was genuine:

“[T]he proviso did not apply to citizens naturalized under that Act, who must have been resident within the United States at the time of their naturalization, but only to such native citizens, or citizens naturalized by British law, as had left the country before or during the Revolution and had never returned.”

This analysis is awkward, and does not appear to make any sense with regard to British law. Binney recognized that, and quickly published a second edition, which contains the footnote cited by Justice Gray. I have uploaded the second edition here. The footnote takes up most of pg. 20, continuing on pg.21. Justice Gray quoted from it as follows:

“Mr. Binney in the second edition of a paper on the Alienigenae of the United States, printed in pamphlet at Philadelphia, with a preface bearing his signature and the date of December 1, 1853, said: ‘The common- law principle of allegiance was the law of all the states at the time of the Revolution and at the adoption of the constitution; and by that principle the citizens of the United States are, with the exceptions before mentioned [namely, foreign-born children of citizens, under statutes to be presently referred to], such only as are either born or made so, born within the limits and under the jurisdiction of the United States, or naturalized by the authority of law, either in one of the states before the constitution, or, since that time, by virtue of an act of the congress of the United States.’ Page 20. ‘The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ Page 22, note. This paper, without Mr. Binney’s name, and with the note in a less complete form, and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Am. Law Reg. 193, 203, 204.” U.S. v. Wong Kim Ark, 169 U.S. 649, 665-666 (1898). (Emphasis added.)

The second edition, however, while supplying the note, also contains the exact same statutory misquote as the first edition. Additionally, Justice Gray got his facts very wrong in the bold print part quoted above. The note from the peer-reviewed ALR edition is the third and final edition, and the note, therefore, is in its complete form in that edition, whereas the second edition contains a longer note, but that note is based upon the statutory misquote, and is, therefore, not the final note.

Justice Gray’s suggestion that the ALR was the first edition is proved false by the fact that the ALR edition finally gets the statute right, and the note attached to the ALR edition makes sense when read in light of the correct statute. I have uploaded the ALR version here. Go to pg. 12, and you will see that the statute now reflects the true proviso, which requires the fathers to have been resident. The note in the ALR version appears on pg. 13, and you can see that the following passage was stripped from the final edition:

“The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”

  Justice Gray relied on this deleted, and discredited passage, not only on pgs. 665-666 of the Wong Kim Ark opinion, but he also relied on it in the holding, on pg. 693.

The first edition was published in December, 1853. The second edition appears to also have been published in December 1853, as was noted by Justice Gray. The ALR edition was published in Feb. 1854, and is the only edition to have correctly quoted the statute.

That Binney screwed it up twice, must have been the reason his name didn’t appear on the ALR edition. The prior versions contain analysis based upon a statutory provision which did not exist. That analysis drove Binney to quickly publish a second edition, but in doing so he just made it worse.

Justice Gray relied upon this paper multiple times in the Wong Kim Ark opinion, specifically citing the discredited quotes twice. The errors which caused Binney’s first two papers to require these misguided quotations to be removed from the final edition were caught in peer review, and stripped from the third edition. The ALR version is certainly the third and final edition, not the first as was suggested by Gray.

This revelation leaves us with a very rotten opinion from Wong Kim Ark that has determined our national citizenship policy, which, as can be seen from the lack of research applied to it by the lower courts reviewing Obama’s eligibility (none of which mentioned any of the clear errors made by Justice Gray, and pointed out here at this blog), continues to have broad ranging implications that directly touch national security with regard to who is eligible to be commander in chief.

The analysis I have provided in this report, when added to the rest of the sad story concerning Justice Gray’s many errors of law and fact as shadowed by the Chester Arthur controversy, leaves the nation’s highest court looking either corrupt, or stupid. If Justice Gray was aware of the true chronology of the three versions of Binney’s paper, he is guilty of directly, and purposely, defrauding the nation. If he was guilty of negligence, that’s almost just as bad. The U.S. Supreme Court is not supposed to look this bad.

The Wong Kim Ark opinion looks very bad, America.

Leo Donofrio, Esq.

[See commenting rules here.]

A Rat Called Tandem.

Posted in Uncategorized on February 4, 2012 by naturalborncitizen

[UPDATED: 2:12 PM - Cindy Simpson's top headline article at American Thinker is also a must read. Excellent analysis as usual.]

What happened in Georgia is what we refer to in poker as, “playing to a script”. It’s like something out of a Frank Capra movie. The citizens head to court to fix a Constitutional wrong, and the State court appears to be tough on the feds, standing up to them bravely flexing their muscles in the name of their citizens. Nice script. But it’s so very transparent.

Everyone needs to read Mario Apuzzo’s in-depth exposure of the blatant flaws in Judge Malihi’s holding, wherein you will experience a brilliant researcher exposing a truly defective legal opinion.

I only have a little bit to add. My remarks will be brief, and focused upon Judge Malihi’s sad failure to address the issue of statutory construction, which I explained thoroughly in my last report, The Dirty “little” Secret of the Natural-Born Citizen Clause Revealed.

Malihi’s opinion directly contradicts his own recent opinion denying Obama’s Motion to Dismiss, wherein Malihi relied exclusively on statutory construction. However, yesterday, Malihi held that the 14th Amendment had to be read “in tandem” with Article 2, Section 1.

But doing so would render the natural-born citizen clause to be inoperative, in that 14th Amendment citizenship, and nothing more, would be the requirement to be President. This would mean that the natural-born citizen clause is rendered superfluous. Here’s what Chief Justice Marshall said about this issue in Marbury v. Madison, 5 U.S. 137 (1803):

“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.” Id. 174. (Emphasis added.)

And here’s what the U.S. Supreme Court held as to statutory construction in the seminal case on this issue, Morton v. Mancari:

“Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. See, e. g., Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961); Rodgers v. United States, 185 U.S. 83, 87 -89 (1902). 

The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. “When there are two acts upon the same subject, the rule is to give effect to both if possible . . . The intention of the legislature to repeal `must be clear and manifest.’ ” United States v. Borden Co., 308 U.S. 188, 198 (1939).” Morton v. Mancari, 417 U.S. 535, 550-551 (1974).

There is no “clearly expressed intention” to deem 14th Amendment citizens “natural born”. Those words were intentionally left out of the 14th Amendment. And Judge Malihi has simply overruled the U.S. Supreme Court by suggesting that the general citizenship clause of the 14th Amendment governs the specific requirement to be President in Article 2, Section 1.

Both clauses are not given separate effect by Malihi. His opinion holds that the 14th has the exact same effect as the natural-born citizen clause, while the 14th Amendment does not include the words “natural born Citizen”. Persons claiming citizenship under the 14th Amendment are deemed to be “citizens”. Malihi has added the words “natural born” into the Amendment. This is absolutely forbidden, according to Malihi’s own opinion in the Motion to dismiss, wherein he held:

“In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning.’ Six Flags Over Ga. v. Kull, 276 Ga. 210, 211 (2003) (citations and quotation marks omitted). Because there is no other ‘natural and reasonable construction’ of the statutory language, this Court is ‘not authorized either to read into or to read out that which would add to or change its meaning.’ ” (Emphasis added.)

Yeah, dude. Whatevah. Such lack of consistency, just weeks apart, from the same jurist… simply reeks. Now he’s putting words into the 14th Amendment, when just two weeks ago he said that was forbidden.

“EVER GET THE FEELING YOU’VE BEEN CHEATED?”

 

Leo Donofrio, Esq.

[See commenting rules here.]

The Dirty “little” Secret Of The Natural Born Citizen Clause Revealed.

Posted in Uncategorized on January 27, 2012 by naturalborncitizen

I have emphasized the word “little” because the truth of the law on this issue is very simple, folks. So simple that the mystery is deciphered by application of one of the most clear, concise and undeniable rules of law; the code of statutory construction governs, and therefore, “natural born Citizen” must require something more than being born in the United States.

Let me put it to you in appropriately simple language:

Clause A = “Only a natural born Citizen may be President.”

Clause B = “Anyone born in the United States is a Citizen.”

(While these two clauses reflect Article 2, Section 1, and the 14th Amendment, I shall refer to them as “Clause A” and “Clause B” for now.)

The code of statutory construction is learned by every student in law school, and every practicing attorney has confronted it. Every judge is required to apply the rule equally to all statutes, and the Constitution. There is no wiggle room at all. The rule states that when a court examines two clauses, unless Congress has made it clear that one clause repeals the other, the court must observe a separate legal effect for each. More specifically, regardless of the chronology of enactment, the general clause can never govern the specific.

Clause B is a general rule of citizenship, which states that all persons born in the country are members of the nation.

Clause A is a specific clause that says only those members of the nation who are “natural born” may be President.

According to the rule of statutory construction, the court must determine that Clause A requires something more than Clause B.

It’s truly that simple. This is not some crazy conspiracy theory. It’s not controversial. This is not rocket science. Every single attorney reading this right now knows, beyond any shadow of a doubt, that I have accurately explained the rule of statutory construction to you. Any attorney who denies this rule, is lying. The rule cannot be denied. And its simplicity cannot be ignored.

Now let’s see what the United States Supreme Court has to say about the rule:

“Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. See, e. g., Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961); Rodgers v. United States, 185 U.S. 83, 87 -89 (1902). 

The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. “When there are two acts upon the same subject, the rule is to give effect to both if possible . . . The intention of the legislature to repeal `must be clear and manifest.’ ” United States v. Borden Co., 308 U.S. 188, 198 (1939).” Morton v. Mancari, 417 U.S. 535, 550-551 (1974).

This is what I mean by no wiggle room – “The courts are not at liberty to pick and choose among congressional enactments…”  Any court construing Clause A is not at liberty to assume that Congress intended to put the words “natural born” into Clause B. The general does not govern the specific, and the rule requires the court to “give effect to both if possible”.

Is it possible to give separate effect to both Clause A and Clause B?

Yes. The Constitution tells us that any Citizen can be a Senator, or Representative, but that to be President one must be a “natural born Citizen”. The Constitution specifically assigns different civic statuses to “Citizens” and “natural born Citizens”. Therefore, not only is it possible to give separate effect to both Clause A and Clause B, it is absolutely required by law, and no court has the ability to circumvent the rule.

Had the original framers intended for any “born Citizen” to be eligible to the office of President, they would not have included the word “natural” in the clause. Additionally, had the framers of the 14th Amendment intended to declare that every person born in the country was a “natural born Citizen”, then the 14th Amendment would contain clear and manifest language to that effect. But it doesn’t. Therefore, each clause must be given separate force and effect.

Deputy Chief Judge Malihi explained the rule of statutory construction in his denial of candidate Obama’s Motion to Dismiss, wherein his opinion of the Court stated:

“Statutory provisions must be read as they are written, and this Court finds that the cases cited by Defendant are not controlling. When the Court construes a constitutional or statutory provision, the ‘first step   . . . is to examine the plain statutory language.’ Morrison v. Claborn, 294 Ga. App. 508, 512 (2008). ‘Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden. In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning.’ Six Flags Over Ga. v. Kull, 276 Ga. 210, 211 (2003) (citations and quotation marks omitted). Because there is no other ‘natural and reasonable construction’ of the statutory language, this Court is ‘not authorized either to read into or to read out that which would add to or change its meaning.‘ Blum v. Schrader, 281 Ga. 238, 240 (2006) (quotation marks omitted).” Order On Motion To Dismiss, Deputy Chief Judge Malihi, Jan. 3, 2012, pg. 3. (Emphasis added.)

Therefore, the term “natural born” must be considered as requiring something more than simple birth in the country. And Judge Malihi states, quite clearly, in his ruling above, that the Court “is not authorized to read into or to read out that which would add to or change its meaning.” The rule is the same for election statutes in Georgia as it is for the Constitution of the United States.

The rule of statutory construction, with regard to the Constitution, was best stated by Chief Justice Marshall in Marbury v. Madison, 5 U.S. 137 (1803):

“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.” Id. 174. (Emphasis added.)

If the 14th Amendment was held to declare that all persons born in the country, and subject to the jurisdiction thereof, were natural-born citizens, then the “natural born Citizen” clause would be rendered inoperative. It would be superfluous. And its specific provision would, therefore, be governed by the general provision of the 14th Amendment. The United States Supreme Court has determined that it is inadmissible to even make that argument.

Any genuine construction of the “natural born Citizen” clause must begin from the starting point that it requires something more than citizenship by virtue of being born on U.S. soil. Minor v. Happersett, 88 U.S. 162 (1874), tells you exactly what that something is; citizen parents.

Leo Donofrio, Esq.

[For a more detailed analysis of this issue, please see my Amicus Brief entered in the Georgia POTUS eligibility cases.]

[See commenting rules here.]

The Current INS Officially Recognizes A Delineation Between Natural-Born and Native-Born.

Posted in Uncategorized on January 25, 2012 by naturalborncitizen

I was just made privy to a very important piece of research I had not previously been aware of. It comes by way of a comment forwarded to me by the author of the h2ooflife blog:

“I had presumed that the idiom “natural born citizen” appeared nowhere in U.S. Law other than A2S1C5, but I found it in administrative law and it is contrasted with native and naturalized citizenship. I’ve never seen any mention of this fact before and wonder how many are aware of it in the ineligibility camp. Here’s the quotes:
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45077/0-0-0-48575.html

He then quoted two provisions from the link provided, but there’s actually three at the official INS “.gov” site which establish official recognition by the federal government that native-born and natural-born should be separately delineated. When you visit the suggested link to the Immigration and Naturalization service, it brings you to “Interpretation 324.2 Reacquisition of citizenship lost by marriage.” 

Interpretation 324.2 (a)(3) provides:

“The repatriation provisions of these two most recent enactments also apply to a native- and natural-born citizen woman who expatriated herself by marriage to an alien…” (Emphasis added.)

Then, Interpretation 324.2(a)(7) provides:

“(7) Restoration of citizenship is prospective . Restoration to citizenship under any one of the three statutes is not regarded as having erased the period of alienage that immediately preceded it.

The words “shall be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922″, as they appeared in the 1936 and 1940 statutes, are prospective and restore the status of native-born or natural-born citizen (whichever existed prior to the loss) as of the date citizenship was reacquired.” (Emphasis added.)

And again, Interpretation 324.2(b) provides:

“The effect of naturalization under the above statutes was not to erase the previous period of alienage, but to restore the person to the status if naturalized, native, or natural-born citizen, as determined by her status prior to loss.” (Emphasis added.)

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45077/0-0-0-48575.html

Three times in this official INS Interpretation – currently published by the Obama Administration – native-born and natural-born are given separate consideration. And in the third example – from Interpretation 324.2(b) – the INS clearly states that each delineation, “naturalized, native, or natural-born citizen“, is a separate status.

The INS includes the following explanation of Interpretations:

“Interpretations were created to supplement and clarify the provisions of the statute and regulations as interpreted by the courts. These materials usually are not included in the regulations because they deal generally with procedural matters and do not deal directly with application and benefit requirements. They are still a useful tool to help you understand how the DHS Bureaus performs their different immigration services and enforcement functions. Users of the Operation Instructions and Interpretations should always consult the relevant regulations and manuals in conjunction with these materials. As the DHS Bureaus have grown, the trend has been towards inclusion of more materials in the regulations and field manuals, and the Operations Instructions and Interpretations have been updated less frequently.”

I am rather rocked by this find, having never seen it before, and it certainly comes to the attention of the nation at a critical moment, one day before the Georgia POTUS eligibility hearings. I do have a policy of only printing comments from attorneys, but I did say in the comment rules that I would be happy to read messages from anyone. Since this research is new to me, and directly relevant to a proper analysis of the natural-born citizen clause, I have made an exception in posting this comment.

However, I must stress that I do not agree with some things at the h2ooflife blog. While I haven’t had the time to examine everything there, I must point out the following, and zealously dispute it:

“The First U.S. Congress included in the 1790 Immigration & Naturalization Act language to alert the State Department to the fact that Americans born abroad are (“natural born” citizens”  and are not to be viewed as foreigners due to foreign birth.  They were not granted citizenship via that US statute, rather their automatic citizenship was stated as a fact that must be recognized by immigration authorities.  They were not citizens by any other means than natural law, and statutory law was written to insure that their natural citizenship was recognized.”

This is not a reasonable explanation. It fails to recognize that Congress only has powers over naturalization. Congress has no power to define “natural born Citizen”, which has nothing to do with naturalization. Furthermore, if Congress wants to tell the State Department something, they don’t have to enact legislation to do it.

But more important is that all of the following naturalization acts, 1795, 1802, etc., were also passed to naturalize the children of U.S. citizens born abroad. And the words “natural born” were repealed in the 1795 Naturalization Act and never returned again.

In Rogers. v. Bellei, 401 U.S. 815 (1971), the U.S. Supreme Court confirmed that persons born abroad are not covered by the 14th Amendment, and therefore, their citizenship can be stripped from them by Congress, whereas Congress cannot strip citizenship from a 14th Amendment citizen, whether born or naturalized here:

“Mr. Justice Gray has observed that the first sentence of the Fourteenth Amendment was “declaratory of existing rights, and affirmative of existing law,” so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. United States v. Wong Kim Ark, 169 U.S., at 688 . Then follows a most significant sentence:

 “But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.”

Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action…

Further, it is conceded here both that Congress may withhold citizenship from persons like plaintiff Bellei and may prescribe a period of residence in the United States as a condition precedent without constitutional question.

Thus we have the presence of congressional power in this area, its exercise, and the Court’s specific recognition of that power and of its having been properly withheld or properly used in particular situations.” Rogers v. Bellei, 401 U.S. 815, 830-831. (Emphasis added.)

Naional law has always required persons born abroad to be naturalized, whether born of citizen parents or not. Furthermore, those born abroad to citizen parents are subject to conditions precedent which Congress may impose upon them in order for them to remain U.S. citizens, whereas Congress has no such power over natural-born citizens, native-born citizens, or citizens naturalized in the U.S.

Again, not only are children of citizens born abroad not natural-born, the Supreme Court has held that their citizenship is subject to being stripped by Congress, since the Constitution does not directly provide for their citizenship, as it does for those born or naturalized in the United States.

I do not appreciate the author’s argument on this point. It is definitely wrong.

Regardless, the research provided as to the INS Interpretations is superb and greatly appreciated. Well done, sir.

Adding these official Interpretations of the INS, published at the official “.gov” site, to the Supreme Court’s opinion from Minor v. Happersett, the true Constitutional definition of  a natural-born citizen, as one born in the country to citizen parents, is further reinforced.

Like the Obama administration’s prior scrubbing of the Foreign Affairs Manual, on August 21, 2009, the INS web site appears due for a cut and die at the salon.

Leo Donofrio, Esq.

[See commenting rules here.]

The English Common Law Definition of Natural Law Is Not Part Of The Law Of Nations.

Posted in Uncategorized on January 24, 2012 by naturalborncitizen

Some have written to ask me whether the Law of Nations is based on natural law, and whether this creates a contradiction to my argument in the Amicus Brief I have submitted in the Georgia POTUS eligibility cases. The answer is no, it is not a contradiction in any way, shape or form. And here’s why:

Customs of international law have developed over millenia as nations have confronted each other. These customs created international law, aka, the Law of Nations.

The Law of Nations respects the sovereignty of each nation, and each nation’s right to worship God as they please, or not to worship God at all. When this custom is violated, wars are inevitable. Natural law under the Law of Nations, therefore, must be non-denominational (including Atheism).

Furthermore, Vattel’s famous treatise didn’t create the Law of Nations. His text is an observation of customs that developed between nations, such customs going back centuries well before Christ walked the Earth.

Christian nations, Atheist nations, Islamic nations, etc., all respect customs of the Law of Nations, but they do not share the same concepts of natural law. To a Pagan, nature is God. To a Marxist/Atheist, science is God. And so on… But all nations do agree that procreation is part of nature.

The English common law was absolutely Christian, and their entire system of Government was based upon their unique view of natural law being issued directly from Jesus Christ as enforced by the English monarch.

I am a Christian, but I do not want religion being established in our government. Jesus said, “Give unto Caesar what is Caesar’s, and give unto God what is God’s.”

Those who believe in Christ, believe natural law emanates from Christ, and those who believe in Allah, believe natural law emanates from Allah. The same is true for those who worship the sun, or the elements, or the stars.

The English common law has Christ at the head of its government, with the King as his main man on Earth. That was the rule of natural law for their nation. Other nations had different concepts of natural law. Again, to a Marxist/Atheist nation, science is natural law. So, with regard to the international community as governed by the Law of Nations, natural law is non-denominational, and even non-spiritual for Atheist nations.

There is a fundamental distinction between natural law in the international community, and natural law under the English common law.

Our Constitution forbids the establishment of religion, while respecting the rights of all persons to worship God or nature as they like. The English common law is in direct polar opposition to our Constitution, in that infidels were considered enemies of the state.  In Calvin’s Case, which is universally recognized as having established the English common law with regard to the jus soli rule, the decision makes it perfectly clear that the English common law presumed infidels would never be converted to Christianity, and it specifically states that they are subjects of devils.

Hence, one could be born on English soil, in the King’s castle even, to parents who loved the King, but if the parents weren’t Christian, they could not be natural-born subjects. Instead, they were considered enemies of the King, because they refused to believe that the King was God’s monarch on Earth. This is not “natural law” to anyone who wasn’t Christian.

The English common law’s uniquely Christian definition of natural law governs the English common law concept of natural subjection/natural allegiance.  And that is why the English common law definition of “natural-born subject” can never be judicially recognized as synonymous with “natural-born citizen”. Such a construction of Article 2, Section 1, would be directly repugnant to the 1st Amendment.

IT COMES DOWN TO STATUTORY CONSTRUCTION.

Perhaps due to the sensitivity of the spiritual concepts discussed in my Amicus brief, people have not been as focused upon my first point in the brief, which is the most important point, and it’s the simplest as well.

The rules of statutory construction in this nation forbid the construction of any clause in the Constitution that renders another clause inoperative. Each clause, and each word of each clause, must be given separate and unique meaning. When the legislature enacted the 14th Amendment, it did not include the word “natural”. The Amendment states that persons born in the country, subject to the jurisdiction thereof, are citizens. It does not say that they are natural-born citizens.

The legislature could have drafted the amendment so that those born here were deemed to be “natural born Citizens”, but the legislature didn’t. And our federal courts are barred, according to the rules of statutory construction, from holding that the 14th Amendment creates natural-born citizens. Had Congress intended the Amendment to do that, their intention to do so must have been clear and manifest. Therefore, such a construction is not only wrong, it is inadmissible according to Chief Justice Marshall’s majority opinion in Marbury v. Madison.

The issue now confronting the nation as to the true Constitutional meaning and intention of the natural-born citizen clause is not as complex as it appears. When one analyzes it in the context of the firmly established rules of statutory construction, it becomes clear that 14th Amendment citizenship is not, by itself, enough to be POTUS eligible. In order for a court to hold that 14th Amendment citizenship alone makes one a natural-born citizen, the court would be required to completely overrule the very foundation of law in this country; checks and balances created by the separation of powers.

Perhaps the judicial branch is willing to do that to protect President Obama from the Constitution’s authority. But in doing so, the judiciary would destroy our legal system. This is because such a construction would be a complete usurpation by the judicial branch of the power granted by the Constitution to Congress.

Therefore, the only possible way to Constitutionally construe the natural-born citizen clause is to require something more than 14th Amendment citizenship. That something more is citizen parentage. And that is exactly how the Supreme Court construed it in Minor v. Happersett, 88 U.S. 162 (1874).

 

Leo Donofrio, Esq.

[See commenting rules here.]

AMICUS BRIEF – Georgia POTUS Eligibility Cases.

Posted in Uncategorized on January 23, 2012 by naturalborncitizen

[UPDATED: 1:23 PM - SCRIBD download for Amicus Brief.]

This morning, I filed an AMICUS BRIEF in the Georgia POTUS eligibility cases. The brief complies with all Rules and procedures of the Administrative Court.  The brief is 54 pages, and the appendix is 155 pages. The Rules of Court require attachment to the brief of all legal authorities, other than those issued by the federal government, or the State of Georgia. There’s some very esoteric law attached thereto.

I seriously urge everyone to familiarize themselves with Lord Coke’s Report from Calvin’s Case, as well as Chancellor Ellesmere’s argument, also in Calvin’s Case, for this is the true common law genesis of jus soli subjection, which happens to be a uniquely Christian tenet of law that has been completely misunderstood in this country for too long now. Calvin’s Case is universally recognized as the common law precedent relating to jus soli, but it is so much more fascinating than you can imagine. And it will forever revolutionize understanding of the words “natural-born”.

This book contains all of the relevant arguments and reports. But the original text of Lord Coke’s Report is the proper starting point. (This document is also in the appendix to my brief.) And here’s another source with slightly modernized English and extras.

You may download the AMICUS BRIEF here.

Leo Donofrio, Esq.

[See commenting rules here.]

The Objectively Gray Propaganda Of Masked Rascals.

Posted in Uncategorized on January 11, 2012 by naturalborncitizen

Justice Horace Gray’s opinion in U.S. v. Wong Kim Ark has provided the basis for 14th Amendment citizenship since 1898.  But history must record the fact that Gray, whether aware of it or not, had a greater personal stake in the outcome of the case than any Supreme Court justice ever has had in a case…and by a very wide margin.  Gray’s appointment came at the hands of Chester Arthur.  Back in Dec. ’08, this blog exposed the fact that Arthur’s father didn’t become a citizen of the United States until 1843, when Chester was 14 years old.  Therefore, Chester Arthur was a natural-born subject of the British empire.

If the Supreme Court had decided in Wong Kim Ark (WKA) that the children of alien parents domiciled in the country were not citizens under the 14th Amendment, then Chester Arthur would not have been a citizen at birth.  Upon being exposed, his administration might have been rendered void, his name stripped from the list of presidents, and his official actions reversed.  That the Court decided Ark, and indirectly Arthur, were citizens, does not mean they were natural-born, as this requires a separate and distinct analysis.

In Justice Kennedy’s majority opinion from Caperton v. A.T. Massey, the Supreme Court stated, with regard to judicial recusal standards:

Under our precedents there are objective standards that require recusal when ‘the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.’ …The inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’ ” Caperton v. A.T. Massey, No. 08-22, 129 S.Ct. 2252 (2009).

Justice Gray, by any objective standard, should have recused himself if he had knowledge of Chester Arthur’s nativity.

Had the country been aware of Arthur having been born to an alien father, there would have been absolutely no need for the Court to have weighed in on WKA, whose citizenship would have been confirmed by the fact that a person born to an alien father had become POTUS with no challenge on that basis.  If Justice Gray was aware of Chester Arthur having been born to an alien father, why didn’t he mention it in the 55 page opinion he authored in WKA?  It certainly would have been very relevant to the issue before the Court.

That Gray never raised the issue tells us one of two things had to be true; either Gray didn’t know; or, he concealed such knowledge from the rest of the Court and the nation.  Either way, Chester Arthur had something to hide, and he did a fine job of hiding it.  My previous reports on this topic (here, and here) highlighted the numerous lies Arthur told to newspapers concerning his parental heritage.

There’s a haunting introduction in the catalogue of papers which remain at the Library of Congress from the Chester Arthur collection, which is virtually barren of documents since Arthur burned everything the day before he died:

“Charles E. McElroy, the son of Mary Arthur McElroy who was my grandfather’s First Lady, tells me that the day before he died, my grandfather caused to be burned three large garbage cans, each at least four feet high, full of papers which I am sure would have thrown much light on history.”

Indeed.

The issue of Chester Arthur having been born to an alien father wasn’t known to the public when Arthur ran for VP, or at anytime through his POTUS administration.  And there has not been a single newspaper article, or legal reference to the issue, anywhere in recorded American history before 2008.

Since Dec. 2008, the issue has gained widespread attention.  It has appeared in the Indiana Court of Appeals opinion from the case, Ankeny v. Governor of the State of Indiana, as well as in Jack Maskell’s Congressional Research Service memo, although neither source has been intellectually honest with its audience about the issue.  In the Ankeny opinion, the Court deceptively remarked as follows:

“We note that President Obama is not the first U.S. President born of parents of differing citizenship. Chester A. Arthur, the twenty-first U.S. President, was born of a mother who was a United States citizen and a father who was an Irish citizen… Although President Arthur‟s status as a natural born citizen was challenged in the 1880 Presidential Election on the grounds that he was born in Canada rather than Vermont, the argument was not made that because Arthur‟s father was an Irish citizen he was constitutionally ineligible to be President. See generally id.” Ankeny v. Governor of the State of Indiana, Cause No. 49D10-0812-PL-55511, pg. 18 (2009).

Either the Court here was being coy, or they were being ignorant, in that they failed to discuss that the issue was not raised because it was not known.  Had it been known, it certainly would have been raised.

We have direct evidence – that the issue was not known to the public – from two important sources.  One is President Arthur himself, and the other is a crucially relevant law review article from 1916.  Both sources provide translucent illumination upon the matter.

When Charles Evans Hughes was running for President, this very issue was brought to the attention of the public by former Secretary of State and Ambassador to Italy, Breckenridge Long, in an article written for the Chicago Legal News in 1916:

“Whether Mr. Hughes is, or is not, a ‘natural born’ citizen within the meaning of the Constitution, so as to make him eligible or ineligible, to assume the office of President, presents an interesting inquiry.

He was born in this country and is beyond question ‘native born.’ But is there not a distinction between ‘native born’ and ‘natural born? At the time he was born his father and mother were subjects of England. His father had not then been naturalized. The day after Mr.Hughes was born his father had a right, as an English subject, to go to the British consul, at New York, and to present his wife and infant and to claim any assistance he might need from the consul as the representative of the English government.

If war had broken out between this government and England this government would have had a right to interne the father, the mother and the son as subjects of an enemy power.”

Read the article in full.  You will notice that it does not address the issue of Chester Arthur’s father having been an alien.  Had the nation been aware of that fact, such knowledge would have determined the very issue in question thereby rendering it moot.

Long’s failure to draw a comparison to Arthur’s father, who was also a British subject for the first fourteen years of Chester’s life, is conclusively telling.  Nobody knew about Chester Arthur’s little secret outside of whoever was keeping that secret.  However, Long does mention Chester Arthur in the article for a separate reason which we will discuss below.

According to the 1951 consular compact between the United States and the United Kingdom, President Obama’s father also had the right to register Obama, Jr. as a citizen of the U.K. at a British consular office.

President Obama has never informed the nation whether such registration happened.  If it did, he would still retain British citizenship unless he took official steps to renounce that citizenship.  Without direct registration by his parents, Obama’s U.K. citizenship expired when he became a citizen of Kenya.  My research indicates that he is not a British Overseas Citizen (BOC), as has been contended by some.  I will go into more detail on this in the future.

MASKELL’S CRS PROPAGANDA ON CHESTER ARTHUR AND BRECKENRIDGE LONG.

Jack Maskell’s CRS propaganda memo mentions Arthur on page 48 at Footnote 208:

“As an historical matter it may be noted that Chester A. Arthur, 21st President of the United States, was apparently born in the United States (despite rumors being spread by opponents that he was born in Canada) in 1829 to a U.S. citizen-mother and a father who was not a U.S. citizen, but rather a citizen of Ireland and a British subject, although there have been assertions by some that this fact was not widely known at the time.”  (Emphasis added.)

This is a subtle attempt to rewrite historical truth.  It implies that there are only “assertions” that the fact wasn’t widely known, when, in reality, the assertions have been proved by the historical record.  The issue wasn’t known to anyone in the public domain at all, not until Dec. 2008.  Had the issue been public knowledge, it would have been discussed by Justice Gray, and by Breckenridge Long.

Maskell mentions the Long article in the very same footnote, but fails to inform his audience (Congress) that the article was written by a former Secretary of State, stating, “Although a question was raised by this individual at the time of Hughes’ candidacy...”

Maskell might have considered that members of Congress would be interested to know the article came from a career diplomat/department of state professional, but he chose to leave that out of his “research”.

SCOTUS RECUSAL ISSUES.

Obviously, a U.S. Supreme Court justice, who is called to pass judgment upon the eligibility of the president responsible for appointing him to the bench, would have a serious stake in the outcome, namely, his dream job and income therefrom.  Not only would the honor and prestige of the appointment be at risk of being stripped, there’s a financial stake as well.

And if this issue ever reaches the Court as to Obama, Justices Sotomayor and Kagan must recuse themselves as well, according to 28 U.S.C. 455(a):

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

28 U.S.C. 451 defines “justice” as follows:

The term “justice of the United States” includes the Chief Justice of the United States and the associate justices of the Supreme Court.

Justice Gray’s awareness of Arthur’s nativity issue must be examined now in a forensic manner, but Justices Sotomayor and Kagan are certainly aware of Obama’s eligibility conundrum, and should they not be required to recuse themselves if the Court accepts review, the institution of the U.S. Supreme Court will never recover.  It’s hallowed reputation will be irreversibly tainted.

This forensic process now continues from my recent report on Gray’s inexcusable misquotes regarding McCreery v. Somerville in the WKA opinion.  Today, we set the stage for a deeper examination of WKA, by going back in time before it was decided to examine statements by Gray which directly contradict his opinion in WKA.  We shall also pay very close attention to a hauntingly telling public statement by Chester Arthur.

JUSTICE GRAY CITED THE SLAUGHTERHOUSE CASES AS PRECEDENT IN ELK v. WILKINS.

Two years earlier than Minor v. Happersett, with 8 of the 9 Justices from Minor on the bench, the Court construed the 14th Amendment as follows:

The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”  The Slaughter-House Cases, 83 U.S. 36, 73 (1872).

According to this statement by the Court, those born in the country of alien parents are not citizens of the U.S.  This quote was then followed by a very important distinction between foreign citizenship… and foreign race:

“The first clause of the fourteenth amendment changes this whole subject, and removes it from the region of discussion and doubt. It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any State or the condition of their ancestry.”  Id. at 95.  (Emphasis added.)

Throughout the opinion, the Court discusses the “condition” of persons with regard to being free or slave.  And the opinion of the Court shows great respect for the purpose of the 14th Amendment, to protect those who were previously oppressed:

“[O]n the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”   Id. at 71.

The Supreme Court, therefore, provided a clear distinction between the issue of racial discrimination, and the issue of foreign citizenship.  This vital distinction provides important clarity upon the issue, and upon the virtue of the Minor/Slaughter-House Court, which will certainly be slandered as the issue generates more and more interest with the public leading up to the 2012 election, amidst the various ballot challenges now pending in the courts.

You can see the trend already put in play by Jack Maskell’s CRS propaganda memo, wherein he attempts, on page 28, to link Minor v. Happersett to the racist Dred Scott case, despite the fact that the Court in Minor never even mentions Scott v. Sandford in the entire case:

“In one early Supreme Court case after Dred Scott, the Court narrowly applied the earlier theory of citizenship in Dred Scott (as being only the original community of people who ratified the Constitution and their progeny)…”

This is Maskell’s modus operandi of deception clearly exposed.  While the Court in Minor completely, and wisely, refrained from citing to Dred Scott, Maskell’s propaganda associates those justices directly with the blight of racism contained in Scott v. Sandford.  This is a depraved allegation by Maskell.

Supreme Court decisions specifically cite to all authorities relied upon.  The Court in Minor chose not to rely upon the Dred Scott opinion, and they never mention the case.  Maskell is just making stuff up and labeling it “research”.  That our tax dollars have funded this deceptive propaganda is deplorable.  Meanwhile, it’s Justice Gray who endorsed the Dred Scott opinion for his own purposes.  But Maskell, of course, gives Justice Gray a pass, even where Justice Gray blatantly misled the nation:

“In Dred Scott v. Sandford (1857) 19 How. 393, Mr. Justice Curtis said: ‘The first section of the second article of the constitution uses the language, ‘a natural-born citizen.’ It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the constitution, which referred citizenship to the place of birth.’ Id. 576. And to this extent no different opinion was expressed or intimated by any of the other judges.”  U.S. v. Wong Kim Ark, 169 U.S. 649, 662 (1898).  (Emphasis added.)

First, Gray never mentions that he’s quoting from the Curtis dissent.  It’s standard protocol to identify a dissenting opinion.  Second, unless the reader is wary enough to correctly interpret, “to this extent”, he will come away from the passage believing all of the justices agreed that anyone born in the country was a “natural-born citizen”.  This is utterly false. Justice Daniel cited to the Law of Nations rule, quoting Vattel directly:

” ‘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.’ ”  Scott v. Sandford, 60 U.S. 393, 476 (1856)

Since Justice Gray was aware of Justice Daniel’s opinion, his assertion, that no other opinion was expressed by any of the other judges, indicates that, “to this extent”, was, to the extent of citizenship, and not to the issue of whether a citizen was natural-born.  It takes a very discerning point of view to unearth the distinction.  The motive for such parsing and deception appears to be the curing of Chester Arthur’s eligibility defect.

We shall now examine Justice Gray’s reliance, in Elk v. Wilkins, upon The Slaughter-House Cases, which he cited as precedent in his majority opinion of the Court:

The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, (Scott v. Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. Slaughter-House Cases, 16 Wall. 36, 73; Strauder v. West Virginia, 100 U.S. 303 , 306.”  Elk v. Wilkins, 112 U.S. 94, 101 (1884).  (Emphasis added.)

First, note that Gray, at this point in time, interprets the opening clause of the 14th Amendment to mean, “owing no allegiance to any alien power”. He clearly establishes as precedent that “subject to the jurisdiction thereof” and “owing no allegiance to any alien power” are synonymous. Then he cites to page 73 of The Slaughter-House Cases as precedent for this point.

Page 73 is the exact page of the opinion where the Court stated, “The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”  Notice that Justice Gray treats this as precedent in Elk v. Wilkins, taking no issue with any of it.

While Elk v. Wilkins concerned the status of an American indian, which encompassed, I admit, a more complex issue, Gray’s statement above is given as a general statement of law, not as a specific reference to the status of indians.

The point is reinforced later in the opinion, when he states:

“Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indiana tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.”  Elk v. Wilkins, 112 U.S. 94, 102 (1884).  (Emphasis added.)

The paragraph concerns three classes of persons who are - in a geographical sense – born in the United States, but who are not subject to the jurisdiction of the U.S.  Those three classes are indians, children of ambassadors, and children born in the U.S. of foreign subjects, the parents having been born in the foreign nation themselves.  The statement does not make sense if read to mean that the children of foreign subjects referred to in the quote are actually born on the foreign soil of the country to which their parents owe allegiance.

The comparison is solely focused upon persons born, in a geographical sense, in the U.S., but subject to an alien power.  This statement must be read in conjunction with Justice Gray’s deference to page 73 of The Slaughter-House Cases, as well as the Court’s correlative characterization of the synonymous nature of the 14th Amendment and the Civil Rights Act of 1866.

In 1884, Justice  Gray was all about following stare decisis by giving proper respect to the prior authority.  But something happened – between 1884, when Elk v. Wilkins was decided, and 1898 when WKA was decided – that made Justice Gray turn about-face on this issue.  We shall discuss below what I believe to have been the catalyst, but first we must review Justice Gray’s about-face from The Slaughter-House Cases in WKA:

“Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the fourteenth amendment, made this remark: ‘The phrase ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states, born within the United States.’ 16 Wall. 73. This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities; and that it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase is apparent from its classing foreign ministers and consuls together…”  U.S. v. Wong Kim Ark, 169 U.S. 649, 678 (1898).

Under Gray’s analysis here, his own errors in the WKA opinion, such as misquotes from McCreery v. Somerville and the statute there involved, would render his entire opinion in WKA to be dicta.  Moreover, there was no mention of any problem with The Slaughter-House Cases when Justice Gray cited to page 73 of that decision in Elk v. Wilkins.  Gray had no problem using it as a point of authority then.  And his assertion that the point was not supported by any argument is bunk as well.  There’s plenty of argument on the nature of citizenship in that case.

The unexplained inconsistency between Gray’s opinion in Elk v. Wilkins and WKA simply reeks of bias.

Here is another about-face from Gray’s prior opinion in Elk v. Wilkins:

“By the civil rights act of 1866, ‘all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,’ were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, it can hardly be doubted that the words of that act, ‘not subject to any foreign power,’ were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright…But any possible doubt in this regard was removed when the negative words of the civil rights act, ‘not subject to any foreign power,’ gave way, in the fourteenth amendment of the constitution, to the affirmative words, ‘subject to the jurisdiction of the United States.’ ”  U.S. v. Wong Kim Ark, 169 U.S. 649, 688.

Again, in Elk v. Wilkins, Gray treats the 14th Amendment and the Civil Rights Act synonymously, citing to The Slaughter-House Cases as authority, to the very page where the court stated persons born of aliens are excluded from citizenship.  And what complicates all of this so effectively is the fact that Gray fails to acknowledge the truth of his prior stance in Elk v. Wilkins.  Instead, he simply pretends that he never made such a ruling.

CHESTER ARTHUR SOUNDS THE ALARM.

The catalyst for Justice Gray’s about-face may have been the Fourth Annual Message by President Arthur.  Just four weeks after the opinion from Elk v. Wilkins was issued (Nov 3, 1894), President Arthur’s address included the following veiled, but stunning, admission:

An uniform rule of naturalization” such as the Constitution contemplates should, among other things, clearly define the status of persons born within the United States subject to a foreign power (section 1992) and of minor children of fathers who have declared their intention to become citizens but have failed to perfect their naturalization…A just and uniform law in this respect would strengthen the hands of the Government in protecting its citizens abroad and would pave the way for the conclusion of treaties of naturalization with foreign countries.”  President Chester Arthur, Fourth Annual Message, Dec. 1, 1894.

What an incredible statement this truly is when viewed in the light of history.  Chester Arthur was obviously rocked to the core by the Elk opinion, delivered just a few weeks earlier, from the highest Court of our nation, which firmly denied his right to hold the office of President.  Arthur clearly understood that the implications of that decision were exactly as I have stated above, that persons born in the country of alien parents were excluded from citizenship.  Arthur’s Fourth Annual Message is a cry from the wilderness to which he might have been banished.  Arthur was a prestigious New York attorney who obviously understood the dire implication of the Court’s holding.  The timing of these comments is directly related to Elk v. Wilkins.  This is what I mean by forensic analysis.

The statement is rich with context and evidence.  Consider that Arthur recognizes that persons born in the U.S. subject to a foreign power would require naturalization.  Additionally, he calls for the status of such persons to be clarified.  Which class of persons does he refer to?  Certainly not ambassadors and ministers, since their status has always been clear.  The status of indians was declared in Elk v. Wilkins, so he’s not making reference to them.  That leaves the third class of persons discussed on page 73 of The Slaughter-House Cases, “citizens or subjects of foreign States born within the United States”.  Since Justice Gray cited to that exact page as precedent, Arthur had good reason to be alarmed.

Those requiring naturalization are not natural-born.  That the Civil Rights Act of 1866 was an act to naturalize the children of aliens born in the U.S. was discussed in Congress during the debates, such discussion actually having been quoted by Justice Gray in WKA:

“During the debates in the senate in January and February, 1866, upon the civil rights bill, Mr. Trumbull, the chairman of the committee which reported the bill, moved to amend the first sentence thereof so as to read: ‘All persons born in the United States, and not subject to any foreign power, are hereby declared to be citizens of the United States, without distinction of color.’ Mr. Cowan, of Pennsylvania, asked ‘whether it will not have the effect of naturalizing the children of Chinese and Gypsies, born in this country?’ Mr. Trumbull answered, ‘Undoubtedly;’…Cong. Globe, 39th Cong. 1st Sess. pt. 1, pp. 498, 573, 574.”  U.S. v. Wong Kim Ark, 169 U.S. 649, 698.

Justice Gray cites this statement approvingly, taking no issue with its indication that persons born in the U.S. of alien parents require naturalization, despite his dicta concerning the British common law.  And this confirms that the Civil Rights Act of 1866 was a naturalization act.  The only congressional power to regulate citizenship  pertains to naturalization.  For example:

“[C]ongress has no ‘power, express or implied, to take away an American citizen’s citizenship without his assent,’ Afroyim v. Rusk, 387 U.S., at 257 .”  Rogers v. Bellei, 401 U.S. 815, 835 (1971).

This is also why Congress may never change or repeal Article 2, Section 1 by legislation. It would require a constitutional amendment.  Therefore, native-born persons of alien parents, requiring such naturalization, could never be considered natural-born citizens.  This is because, whatever the 14th Amendment may have done to cure their need for naturalization, the Amendment did not contain the phrase “natural-born”, and it did not confer any new privileges or immunities:

“The amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had.”   Minor v. Happersett, 88 U.S. 162, 171 (1874).

Therefore, no citizen is eligible to be POTUS who wouldn’t have been eligible prior to the enactment of the 14th Amendment.

President Arthur’s Fourth Annual Message was also concerned with the children of fathers who had failed to complete their naturalization after declaring intent to naturalize. He was cryptically speaking of himself.  If the fact of Arthur’s birth to an alien father had been known, there would have been no need for him to raise the issue with the public in his Fourth Annual Message.

And in an amazing turn of events, Breckenridge Long specifically mentioned Chester Arthur’s Fourth Annual Message to show that President Arthur agreed that persons born to an alien father were not citizens at birth, and were not eligible to be President!  This unequivocally proves that Breckenridge Long, and the rest of the nation, certainly had no idea Chester Arthur was British at birth.

WONG KIM ARK’S PARENTS WERE TECHNICALLY NATIONALS OF THE UNITED STATES.

And now we come to a truly amazing failure on the part of Justice Gray’s opinion in WKA.  In the entire 55 page opinion, he traces the history of allegiance and citizenship all the way back to the 14th century, but, unbelievable as it may appear, Justice Gray failed to mention the specific article of law which actually determined the entire case. He did mention the treaty to which this article of law belongs, but he never quoted the provision which would have disposed of the issue on its face.

Having mentioned the treaty in the opinion, however, it is possible (and necessary) to limit the holding of WKA to this specific provision.  Should the current Supreme Court wish to correct the mess Gray has left for them, the Court can avoid completely overturning the holding in WKA by strictly limiting it to those who were covered under the Burlingame-Seward Treaty.

I never understood how Justice Gray, in Elk v. Wilkins, could define “subject to the jurisdiction of the United States” as being synonymous with “owing no allegiance to any alien power“, and then fail to apply that logic to the parents of WKA, while the parents were observed by Gray to have been subjects of the Chinese Emperor when their son was born.  How did Gray determine that Ark owed no allegiance to China at birth?  Justice Field’s dissent zeroes in on this:

“If the act of 1866 had not contained the words ‘and not subject to any foreign power,’ the children neither of public ministers nor of aliens in territory in hostile occupation would have been included within its terms on any proper construction, for their birth would not have subjected them to ties of allegiance, whether local and temporary, or general and permanent.

There was no necessity as to them for the insertion of the words, although they were embraced by them.

But there were others in respect of whom the exception was needed, namely, the children of aliens, whose parents owed local and temporary allegiance merely, remaining subject to a foreign power by virtue of the tie of permanenta llegiance, which they had not severed by formal abjuration or equivalent conduct, and some of whom were not permitted to do so if they would.

And it was to prevent the acquisition of citizenship by the children of such aliens merely by birth within the geographical limits of the United States that the words were inserted.”  U.S. v. Wong Kim Ark, 169 U.S. 649, 721.

Generally, it is true that aliens owe only a local and temporary allegiance, but this was not the case as to the parents of Wong Kim Ark.  Ark was born in 1873, when the Burlingame-Seward Treaty with China was in effect.  Article 5 of that treaty states:

ARTICLE V The United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects respectively from the one country to the other, for purposes of curiosity, of trade, or as permanent residents…

Article VI of the treaty provides that, “[N]othing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States,” while Article V recognizes that subjects of China, when they change their home to the United States, and become permanent residents here, may also change their allegiance.

Note that the treaty does not say that they may gain a second allegiance, or a dual allegiance.  The Treaty recognizes their right to change their “home and allegiance”.  This was a completely unique provision, the necessity of which was related to the law in China that called for the beheading of subjects who tried to throw off their allegiance:

“But of all the treaties of the year, the most remarkable in its declarations respecting expatriation was that with China, commonly known as the Burlingame treaty.  According to the terms of her penal code, China had apparently treated the renunciation of her allegiance as a capital offence.  By article 5 of the Burlingame treaty, it was declared in the very substance of the act of Congress:  ‘The United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance.’  This declaration was absolutely unqualified, going in this respect beyond the stipulations of any other treaty.”

The Nation, December 14, 1893, pg. 444.  (Emphasis added.)

Now compare that passage to the following from Justice Gray in WKA:

“Chinese persons, born out of the United States, remaining subjects of the emperor of China, and not having become citizens of the United States, are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here; and are ‘subject to the jurisdiction thereof,’ in the same sense as all other aliens residing in the United States.”  U.S. v. Wong Kim Ark, 169 u.S. 649, 694.  (Emphasis added.)

But this is not necessarily true with regard to Chinese subjects who quit China for the U.S. while the Burlingame treaty was in force.  According to the Burlingame treaty, Chinese subjects who were permanent residents here were absolved of owing allegiance to China.  The treaty recognized their right to permanently change their home and allegiance.

Title 8, § 1101, (a)(22), of the United States Code, states:

(22) The term “national of the United States” means

(A) a citizen of the United States, or

(B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

This provision of the code was not in effect when Ark’s parents were born, but it does illustrate that there is a unique relationship recognized by the government which adheres to persons who, though not citizens, have a permanent allegiance to the United States.

Additionally, Title 8, § 1101, (a)(3), recognizes that such persons are not aliens:

(3) The term “alien” means any person not a citizen or national of the United States.

Despite Justice Gray’s erroneous assertion that Ark’s parents were subject to the jurisdiction thereof, “in the same sense as all other aliens residing in the United States”, the truth is that they were completely and permanently subject to the jurisdiction of the U.S., because the treaty allowed them to permanently change their home and allegiance.  The ties that binded them to China had been severed by the treaty, and this distinguished their status from all other foreign subjects who were domiciled here.

Justice Gray’s career on the bench is characterized by his use of the historical method.  When we consider his failure to cite Article V, his misquotes concerning McCreery v. Somerville, and his flip-flopping from Elk v. Wilkins to Won Kim Ark, the emerging picture is very disturbing.  This blister, if left to fester, will infect the Supreme Court with an incurable disease.

Treaties are the law of the land, and this one recognized a permanent change of allegiance upon a permanent change of residence.  Justice Gray could have cut 50 pages from his opinion, and avoided construction of the 14th Amendment, by focusing upon the extraordinary treaty between the two countries, wherein China released its subjects from owing any allegiance at all to their mother country.

It’s beyond reason to imagine that Justice Gray simply overlooked Article V.  And this is where our analysis must be somewhat presumptuous, for we must consider motive.  Had the Court simply recognized that Ark’s case was unique due to the extraordinary powers of the treaty, the case would have failed to sanitize the citizenship of the man who appointed Justice Gray to the bench.  But since Gray failed to exercise judicial restraint, the holding in WKA provided for the citizenship of Chester Arthur.

Leo Donofrio, Esq.

[Hat tip to Cindy Simpson re "The Nation" article.]

[See commenting rules here.]

Minor v. Happersett Revisited.

Posted in Uncategorized on January 9, 2012 by naturalborncitizen

[My previous report was in three parts, with the first being a rather extensive exposure of a misquote by the SCOTUS in both McCreery v. Somerville and Wong Kim Ark.  The second part exposed fraudulent propaganda from Maskell's most recent CRS memo.  And the final part examined Minor v. Happersett in light of some of the arguments being offered against its precedent, providing new analysis of key provisions of the holding therein.  I am reprinting the section on Minor now as a separate post because it is crucial to understanding the case, and it appears to have been somewhat swallowed up by the first two parts.]

MINOR v. HAPPERSETT REVISITED.

…the only time the US Supreme Court ever did define the class of persons who were POTUS eligible under Article 2 Section 1 was in Minor v. Happersett, 88 U.S. 162 (1874), wherein it was held:

“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.” Minor v. Happersett, 88 U.S. 162, 168.

There’s a quote for you. It really exists. And it tells you exactly who are natural-born citizens; those born in the country of parents who are citizens. The words are plain-spoken and self-evident. There are two classes of persons discussed in the above quotation. Those born in the country of citizen parents were labeled by the Court as “natives or natural-born citizens”, but these were also further identified as being “distinguished from aliens or foreigners”. The distinction is crucial.

On one side are those who have no citizenship other than that of the United States… as distinguished from those on the polar opposite side who have absolutely no claim to citizenship in the United States; “These were natives, or natural-born citizens, as distinguished from aliens or foreigners.” Those who fall in between these two extremes make up a third class of persons whose citizenship status, the Court noted, was subject to doubt:

“Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of the parents. As to this class there have been doubts, but never as to the first.” Id. (Emphasis added.)

Had this third class been contemplated as having any claim to being natural-born citizens, the distinction employed by the court would not make sense. The distinction was employed to more specifically identify the class of persons who were natural-born citizens under Article 2, Section 1, Clause 5. The two classes discussed are in direct polar opposition to each other. Had this distinction not been employed, it might be argued that those born in the country of one citizen parent were also natural-born. But the distinction leads to the necessary conclusion that the Court in Minor was identifying a two-citizen parent rule.

For example, a person born in the US to a British father and U.S. citizen mother would, at the time of the adoption of the Constitution (and at the time Minor v. Happersett was decided), be considered as a natural-born subject of the U.K. Whether this child would be, at his birth, a citizen under the 14th amendment, was left undecided by the Court in Minor. But let’s assume that the child was a U.S. citizen. Where does that child fit into the distinction offered by the Court in Minor? The child is not on either polar extreme, since the child was not exclusively a US citizen at birth, nor was the child exclusively a British subject at birth. He does not fit into the distinction.

By choosing two extremes – those who, at their birth, are nothing but U.S. citizens – “as distinguished from aliens or foreigners” – those who, at their birth, are in no way U.S. citizens – the Supreme Court in Minor provided the necessary criteria to properly discern their holding.

Nothing has been left open as to the Minor Court’s definition of a natural-born citizen. This is further made clear by the Court’s other – somewhat overlooked – federal citizenship holding:

“The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association…

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.”

Minor v. Happersett, 88 U.S. 162, 165-166 (1874). (Emphasis added.)

Therefore, when the Court uses the words, “citizen” or “citizenship”, no other meaning may be imputed other than, “membership of a nation”. But Jack Maskell believes he can overrule this specific holding of the Supreme Court by inserting the words “natural-born” where they do not appear. ”Natural-born” only pertains to a requirement for the municipal office of President. Those who are natural-born meet that qualification, but all who are citizens, natural-born, naturalized abroad, naturalized here, at birth or later in life, are members of our nation. The word citizen – according to the Supreme Court in Minor – refers to “membership of a nation, and nothing more“. It’s the “nothing more” that Maskell fails to recognize.

In Maskell’s CRS memo, he alleges that the following statement from Minor left open the issue of whether persons born of aliens could be considered as natural-born citizens:

“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. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”  Id. at 167-168. (Emphasis added.)

Reading this passage in light of the definition of “citizen” from pg. 166 of Minor’s unanimous opinion, it becomes evident that what is referred to here is membership in our nation, and nothing more. Any attempt to insert the words – “natural-born” – into this passage to imply that the court left open the issue of whether those whose citizenship was in doubt might also be eligible to be President would be in direct opposition to the Court’s very holding of the case. This expression of doubt must be limited to the political status of the person, not to their eligibility to hold a municipal office. Political status is a legal term of art which means, “membership in a nation, and nothing more”. Presidential eligibility refers to municipal status. The holding not only determined Virginia Minor’s citizenship, it directly defined “citizen”, and that definition remains the law of the land today.

First, on pgs. 165-166, the Court defined the meaning of the word “citizen”. Then, on pgs. 167-168, the court defined the class of “natural-born citizens”. The Court left open the issue of who were “citizens” under the 14th Amendment, which the Court wisely avoided by exercising judicial constraint. Instead, the Court construed Article 2 Section 1, Clause 5, the natural-born citizen clause. In doing so, they defined and closed that class to persons born in the country to parents who are citizens.

The Minor Court’s unanimous opinion and definition of natural-born citizen have never been overruled or even questioned. In fact, the very passage defining the natural-born citizen class was re-stated in Justice Gray’s opinion from Wong Kim Ark. Had he intended to take issue with that definition, or to expand it, then his opinion would certainly contain something like this:

Wong Kim Ark is a natural-born citizen eligible to be President.

But no such statement exists. It’s also important to remember at all times that the Court in Minor specifically avoided construction of the 14th Amendment, thereby defining the class of natural-born citizens and identifying Virginia Minor as a member of that class. Virginia Minor directly petitioned the Court to determine that she was a citizen under the 14th Amendment. But the Minor Court declined to construe the 14th Amendment, and thereafter set about defining the class of persons who were natural-born citizens of the United States in determining that she was a citizen.

In 1996, the US Supreme Court’s majority opinion by Justice Breyer in Ogilvie Et Al., Minors v. United States, 519 U.S. 79 (1996), stated that when the Court discusses a certain reason as an independent ground in support of their decision, then that reason is not simply dictum:

“Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an ‘independent’ ground in support of our decision, id., at 334. We cannot accept petitioners’ claim that it was simply a dictum.”

The Minor Court’s construction of Article 2, Section 1, Clause 5, of the United States Constitution was the independent ground by which the Court avoided construing the 14th Amendment’s citizenship clause.

Therefore, such construction is precedent, not dicta, despite POTUS eligibility not being an issue. The Court determined it was necessary to define the class of natural-born citizens, and the definition is current legal precedent.

Had the Court in Wong Kim Ark identified him as a natural-born citizen, there would have been no need to construe the 14th Amendment, just as it wasn’t necessary to construe it to determine Virginia Minor’s citizenship. But Wong Kim Ark was not natural-born, and therefore the Court was required to construe the 14th Amendment to determine his citizenship status.

Again, had Justice Gray’s opinion intended to state that Ark was natural-born, there would be a sentence in Gray’s opinion stating, Wong Kim Ark is a natural-born citizen. But there isn’t. No amount of tongue twisting can insert those words where they do not exist and do not belong.

The same is true for the Supreme Court’s unanimous opinion in Minor v. Happersett. Had the court intended to say – Some authorities go further and include as natural-born citizens children born within the jurisdiction without reference to the citizenship of the parents – then that is exactly what the US Supreme Court would have said. But they didn’t.

And the same can be said for the framers of the 14th Amendment. Had they intended to include the words “natural-born citizen” in the Amendment, then that is exactly what they would have done. But they didn’t. Any attempt to read those words into the 14th Amendment would render Article 2, Section 1, Clause 5, to be superfluous. And that goes directly against our entire body of national jurisprudence on the issue of statutory construction.

I will more thoroughly address the issue of statutory construction in the days ahead. (Since the state of Georgia will be hearing this issue on Jan. 26, 2012, I have decided to come forward with everything I have now, rather than waiting to publish my book.)

Leo Donofrio, Esq.

[See commenting rules here.]

The McCreery v. Somerville Funeral – Maskell And Gray To Attend – Minor v. Happersett To Preside.

Posted in Uncategorized on January 7, 2012 by naturalborncitizen

Part 1: JUSTICE GRAY MISQUOTED McCREERY V. SOMERVILLE AND THE RELEVANT STATUTE.

Grab a cup of java, put your thinking caps on, kick back and relax.  We are going to be here for a while.  Focus.  Below, you will be privy to a true and proper revision of United States Supreme Court history.

One of the foundational building blocks for Justice Gray’s opinion in U.S. v. Wong Kim Ark is the case, McCreery v. Somerville, 22 US 354 (1824), to which Gray made a fatally flawed assumption based upon his failure to acknowledge a judicially recognized misquote.  Then, Justice Gray compounded his initial error by creating a separately deceptive quotation.

These errors completely sully his analysis of McCreery.  Gray failed to inform his opinion in Wong Kim Ark with the fact that the U.S Supreme Court had questioned that opinion in 1881, just prior to Gray having joined the Court.

In Sullivan v.Burnett, 105 U.S. 334 (1881), the Court stated:

“This view is controverted by the plaintiffs on the authority of McCreery’s Lessee v. Somerville, 9 Wheat. 354, where this Court had occasion to determine the meaning of the statute of 11 & 12 William III. c. 6,…We remark in reference to that case that the English statute is not accurately quoted in the opinion of the Court, as an examination of 10 British Stat. at Large 319 (Pickering’s Ed.) will show. but without deciding that the words omitted ought to have produced a judgment different from that rendered, we are of opinion that the present case is not governed by McCreery’s Lessee v. Somerville.”  Sullivan v. Burnett, 105 U.S. 334, 340-341. (Emphasis added.)

The misquote would not have changed the outcome in McCreery since the issue of the plaintiff’s citizenship status made no difference to the case, where the plaintiff could not inherit from a living ancestor.  In Sullivan v. Burnett, the Missouri statute did allow for inheritance through a living ancestor, so McCreery was not controlling.  However, the misquote completely nullifies Justice Gray’s assumption in Wong Kim Ark.  And considering that McCreery is the only Supreme Court holding prior to Wong Kim Ark which appeared to assume that native-born persons of alien parents were citizens, the embarrassment of the failed assumption further weakens the questionable reputation of Justice Gray’s controversial opinion.

I came upon the Sullivan case by way of a footnote found at the Princeton Firestone Library, which has the dusty old Wheaton Supreme Court Reporters.  Wheaton added a footnote to McCreery v. Somerville regarding the misquote.

I have learned from experience that every point of authority mentioned by Justice Gray in his 55 page opinion must be examined under a microscope, and that the resulting picture is more often than not quite different than he alleges.  These anomalies include straight forward mistakes, unfounded assumptions, misquotes and subtle acts of misdirection.  Nothing can be taken at face value.  Considering that Gray was indirectly determining the citizenship status of President Chester Arthur (who appointed him), the appearance of impartiality has been severely compromised.  In the days ahead, I will present all of the problems now associated with Gray’s opinion in great detail.  Today, we begin with McCreery v. Somerville.

Justice Gray assumed that the Supreme Court in McCreery made it’s own assumption that the plaintiff in McReery was a “native-born citizen” of the United States:

“In McCreery v. Somerville (1824) 9 Wheat. 354, which concerned the title to land in the state of Maryland, it was assumed that children born in that state of an alien who was still living, and who had not been naturalized, were ‘native-born citizens of the United States’; and without such assumption the case would not have presented the question decided by the court, which, as stated by Mr. Justice Story in delivering the opinion, was ‘whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship, where none would exist by the common law, if the ancestor were a natural-born subject.’ Id. 356.”  U.S. v. Wong Kim Ark, 169 U.S. 649, 661.

Before we get to the misquote by Justice Story in McCreery (which was reiterated by Gray), we have in the quote above a very misleading quotation that appears intentional.  Justice Gray cites to pg. 356 of McCreery at the end of the passage wherein he placed quotes around ‘native-born citizens of the United States’.  But no such quote appears on pg. 356.  In fact, the Court’s opinion in McCreery nowhere states that the plaintiff was a U.S. citizen, native-born or otherwise.  The headnote and facts agreed upon by the parties call the plaintiff a citizen, but these are not part of the Court’s opinion, and are not law.

Since the plaintiff’s ancestor was alive, the Court held that the plaintiff could not inherit from him.  And this would have been the holding regardless of the plaintiff’s citizenship status.  Having determined that the plaintiff couldn’t inherit from that particular ancestor, the Court never reached the direct issue of her citizenship.  And a thorough review of the facts and the British statute construed in McCreery reveals that the Court would not have been required to determine she was a native-born citizen of the U.S. in order for her to inherit.

Gray’s assumption is culled from this passage in McCreery:

“It is perfectly clear that at common law her title is invalid, for no person can claim lands by descent through an alien, since he has no inheritable blood. But the statute of 11 and 12 Wm. III, ch. 6, is admitted to be in force in Maryland, and that statute, beyond all controversy, removes the disability of claiming title by descent, through an alien ancestor. The only point, therefore, is whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship where none would exist by the common law, if the ancestor were a natural born subject.”  McCreery v. Somverville, 22 U.S. 354, 355-356.  (Emphasis added.)

The Court’s use of “the only point” is the basis for Gray’s assumption.  The title to the statute in question is:

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

With regard to the title, Justice Story also stated, “The title is not unimportant, and manifests an intention merely to remove the disability of alienage.”  Justice Gray’s analysis assumed the title to the act meant that it pertained only to “natural-born subjects”.  And if that were true, then Gray’s assumption would be fair.  This is because “the only point” stated in McCreery was whether the plaintiff could inherit despite the ancestor being alive.  If the plaintiff’s citizenship were in question, then there would have been more than one point to decide.

Therefore, if the statute applied only to natural-born subjects, the Court’s opinion in McCreery could be said to have recognized the plaintiff as a native-born citizen of the U.S., despite her being born here to an alien father.  But, in true actuality, the statute specifically refers to natural-born subjects as well as “subjects within any of the King’s realms or dominions”. In the United Kingdom, “subjects within any of the King’s realms or dominions” pertains to resident aliens.  These are persons permanently domiciled within the UK who are neither natural-born nor naturalized.

A “natural-born subject” is a subject wherever he goes in the world, but a resident alien is only a subject of the United Kingdom when he is actually in the King’s realms. Therefore, Gray’s assumption is busted since the plaintiff in McCreery was within the statute regardless of whether she was considered by the Court to be a U.S. citizen or a resident alien.  Since the Court’s opinion doesn’t mention the citizenship status of the plaintiff, it cannot be assumed that the Court assumed she was a U.S. citizen rather than a resident alien.  As such, Justice Story’s reference to “the only point”, while being correct, does not establish that the Court assumed the plaintiff to be a native-born citizen.  Regardless, if the Court in McCreery made the assumption attributed to it by Justice Gray, that assumption was unfounded under the statute.

Justice Gray also stated that “without such assumption the case would not have presented the question decided by the court”.  Not true.  The statute, as written, includes resident alien subjects as well as natural-born subjects.  Since Justice Story’s opinion in McCreery exhibits judicial restraint by wisely avoiding the citizenship issue, Gray’s assumption is unfounded generally.  But considering Story’s judicially recognized misquote, the assumption is specifically, factually, and objectively unfounded as well.  Justice Gray was obligated to point this misquote out, but instead, he danced around it.

Here is an image of the actual statute (link to book containing statute, pgs. 228-229, pgs. 473-474 of PDF file):

Here is the passage from McCreery wherein Justice Story misquotes the statute:

“…that all and every person or persons, being the King’s natural born subject or subjects, within any of the king’s realms or dominions, should and might, thereafter, inherit and be inheritable, as heir or heirs, to any honours, etc., lands, etc., and make their pedigrees and titles, by descent, from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through, or under whom he, she, or they should or might make or derive their title or pedigree, were, or was, or should be, born out of the King’s allegiance, and out of his majesty’s realms and dominions, as freely, fully, and effectually, to all intents and purposes, as if such father and mother, or father or mother, or other ancestor or ancestors, by, from, through, or under whom he, she, or they should or might make or derive their title or pedigree, had been naturalized, or natural born subjects.’ “

A word for word comparison illustrates numerous errors, but we are concerned with only two.  First, please compare the initial line of Justice Story’s quote, and the erroneous reiteration by Justice Gray, to the actual statute:

Justice Story: all and every person or persons, being the King’s natural born subject or subjects, within any of the king’s realms or dominions

Justice Gray:  all and every person or persons, being the king’s natural-born subject or subjects, within any of the king’s realms or dominions

The Statute:   all and every person or persons, being the King’s natural-born subject or subjects within any of the King’s realms or dominions  (emphasis added)

Both Story and Gray insert a comma after “subjects” which grammatically changes the statute.  The comma is not in the actual statute.  With the comma inserted, it might be argued that the statute applies to a natural-born subject or subjects – singular or plural. If that were true, then the statute would only apply to natural-born subjects and not to resident alien subjects.

But even with the comma inserted, the statute still refers to “subjects, within any of the King’s realms or dominions”, and if it were meant to apply only to natural-born subjects, their whereabouts would not be relevant since natural-born subjects maintain their status anywhere in the world.  Expatriation wasn’t even recognized in the U.K. until 1870.  The statute makes no sense on this point unless the location of the person/subject matters, and it could only matter to a person/subject who was considered to be the King’s subject only when within the King’s dominions.  And the only class of British subjects to which location is relevant are resident aliens.  So this interpretation not only makes grammatical sense, it makes legal sense.

Furthermore, the statute is much broader than the title.  The title mentions only the parents having been aliens, but the statute cures any defect of inheritable blood from all ancestors, not just the mother and father.  The title is a broad statement, whereas the statute is very specific.  Also, note that the statute uses similar terminology again in the second half, “natural-born subject or subjects within the King’s dominions“, where no comma is inserted either.  Justice Story stopped his quote before reaching this phrase, and were he quoting from the actual Statute 11 & 12 William III, he should have included –  “.  .  .”  -  to signify that the quote was cut there, and that it goes on.

The cause of Justice Story’s misquote was not discussed in Sullivan v. Burnett, nor, as far as I can tell, has the source of the error been previously revealed.  As it turns out, I have discovered the root cause of the misquote, but I don’t think I was the first to discover it, only the first to reveal it.  More on that below.  But first, please note that Justice Gray’s quotation of the Statute 11 & 12 William III closes with, “natural-born subject or subjects within the king’s dominions.’  Therefore Gray’s quotation of the statute continued where Justice Story’s did not, in that Gray cites the second useage, including “subjects within the King’s dominions”, and he does so without the comma, which is correct.

This second useage of the phrase refers to the ancestor, whereas the initial useage pertains to the person trying to inherit.  The plaintiff in McCreery was trying to inherit so the statute refers to her in the first part, and to her ancestor in the second.  Therefore, the comma inserted by Story and Gray in the first part, creates a grammatical difference, which it now appears, Justice Gray was aware of and actually manipulated to aid his assumption.  This reeks of foul play.  And here’s why.

Gray’s awareness that the second part contained no comma indicates that he was using a source other than Justice Story’s opinion which makes no reference to the second useage of “subjects within the King’s dominions”.  As stated above, Story’s quote stops just short of getting there.  This is because… wait for it — Justice Story was actually quoting from the wrong statute.  In McCreery, after his quote and analysis of 11 & 12 William III, he analyzes Statute 25 George Ch. II, enacted in 1753 as an explanatory statute pertaining to 11 & 12 William III, to which Justice Story notes:

The statute of Geo. II., therefore, after reciting the act of William, declares…

McCreery v. Somerville, 22 U.S. 354, 359.

Well, this happens to be wrong.  As you shall see below, the Statute 25 George II does not recite the Statute 11 & 12 William III, word for word, rather, it revises slightly what was already there, as well as adding new provisions to it.  That it was revised, rather than recited, becomes obvious when you consider the title of 25 George II:

An Act to Obviate Doubts that may arise upon an Act made and passed in the 11th and 12th Years of the Reign of His Late Majesty King William the Third…

This Act then appears to quote 11 & 12 William III directly, and in doing so it provides the exact quote used by Justice Story, who, understandably, relied upon the 25 George II revision of the Statute 11 & 12 William III, rather than the true original version.  Justice Story must not have checked the original statute.  And I empathize with him, since the 25 George II appears, from its introductory language, to indicate that what follow in quotation marks is a recital of the original 11 & 12 William III.  Unfortunately for Justice Story, that is not the case.

The quotation marks not only include the revised William III language, but the quotation marks include much more new language that was not included in the original William III.  You may view the statute 25 George II at the same link provided above for William III (at pgs. 229-230, PDF 474-475) where they are published back to back.  Here’s a snapshot of the George II:

As you can see, it most certainly is a revision.  Note the part in quotation marks which begins, “And whereas many doubts and inconveniences may arise…”  None of that was in the original William III, so there should be no quotation marks around it.  The same can be said for the more subtle revisions in the actual text of the original William III.  For example, the original states, “shall and may hereafter lawfully inherit“, while the revised 25 George II edition states, “should and might thereafter lawfully inherit“.  Both Story and Gray misquoted the 25 George II edition as if it was the William III as to this phrase; Story gives, “should and might, thereafter”; Gray gives “might and should thereafter”.

Now, here’s where it gets truly interesting: Justice Gray’s selective quotations, incorrectly cite the first part of the William III, exactly as Justice Story did, but then later Gray cites the true William III, as Story did not.  This is evidence that Justice Gray was aware of Justice Story’s error, as well as the source of Justice Story’s error. Yet, Justice Gray fails to mention either the error or the source, while purposely availing himself of the error in the Wong Kim Ark opinion.  Not cool.

Furthermore, the revised William III, as stated in 25 George II, strips the closing comment, “subjects within the King’s dominions”, from the end of the Act.  Therefore, Story was quoting entirely from the 25 George II, and his quotation, as I stated above, does not contain “. . .”, to indicate that the Act continues, because in the revised version of the William III, it does not continue.  What does comes after, despite being in quotation marks, is obviously not part of the William III.  That the new language is in quotation marks should have been a red flag for Justice Story.

The second reference to “subjects within the King’s dominions” was deleted because it’s redundant and confusing.  The William III statute was designed to treat each ancestor as if they were a natural-born subject.  As such, the language from the second part of the original William III, which Justice Story did not quote, but which Justice Gray did, was superfluous.  If the ancestor is placed on the same footing as a natural-born subject, there’s no need to include “subjects within the King’s dominions” as well.  It adds nothing and was therefore properly deleted as to the ancestor.  This is why the revised William III, as stated in 25 George II, ends with “natural-born subjects” (plural), whereas in the original William III, it was “natural-born subject” (singular), continued by the deleted text.

That this second reference to “subjects within the King’s dominions” was deleted from the William III in the 25 George II revision, while the initial reference to “subjects, within any of the King’s realms or dominions” was left in (albeit, with the addition of the comma), indicates that such language has a separate purpose, whereas the second reference was superfluous, and therefore deleted.

Furthermore, since the second reference changes “natural-born subject” to “natural-born subjects”, the first reference cannot be explained away, despite the comma, as having the purpose of making plural “natural-born subject”, because had that been intended, it would have been carried out in the same manner as the second reference, which was accomplished by pluralizing the original reference to “natural-born subject”, by simply changing it to “natural-born subjects”.  Therefore, the first reference in the revised William III must pertain to exactly what the original pertained to, “subjects within the King’s realms or dominions”, aka, resident alien subjects.

Additionally, Justice Gray adds further insult to injury, by stating:

“As that statute included persons born ‘within any of the king’s realms or dominions,’ if of course extended to the colonies, and, not having been repealed in Maryland, was in force there.”  U.S. v. Wong Kim Ark, 169 U.S. 649, 661.

This masks a subtle ruse.  Gray begins with – “As that statute included persons born ‘within any of the king’s realms or dominions,’ ” - but the statute actually states, “subjects within any of the King’s realms or dominions“.  It does not state, subjects born within any of the King’s realms or dominions.  Huge difference.

Justice Gray has been caught usurping the statute to suit his own needs, which are not the needs of truth, justice and the American way.  I call a foul on Justice Gray.

Justice Story made an honest error based upon a confusing statutory revision which used quotation marks poorly.  No foul play there.  But Justice Gray has been caught here with his hand in the cookie jar.  He misquoted the first part of the William III just as Story did, but quoted the second part perfectly, which Story did not.  This is clear evidence that Gray knew the source of Story’s error, but chose to keep the rest of the nation in the dark about it.  Justice Gray could not have properly quoted the original William III without having knowledge of it.

The Gray/Arthur nexus creates a dark moment for the U.S. Supreme Court.  Never has a single Justice had so much at personal stake in a decision of the Court.  Considering that Gray wrote the majority opinion, the Supreme Court truly needs to react.  This issue is not going away and will only serve to create a spiraling mistrust of the institution of the Supreme Court if left to fester.

And I have more to come on virtually every source cited by Gray.  If this were the only anomaly, he might deserve a pass, but there’s more of this behavior to be exposed in the days ahead.  Diatribe over.  Let’s get back to the law.

When a resident alien subject leaves the UK to change his domicile, he is no longer considered to be a British subject. The issue was discussed by Sir John Salmond in his report, “Citizenship and Allegiance“, 18 Law Quarterly Review, pp. 49, 50 (1902):

Then, on pg. 59, Salmond notes, after a discussion concerning the common law rule against aliens being able to inherit, that, while non-resident aliens may not avail themselves of statutes, resident aliens, on the other hand, may claim protection of law under statutes:

Therefore, “subjects within any of the King’s realms or dominions”, aka, resident alien subjects, might inherit under the very statute construed in McCreery.

As such, Justice Gray’s assumption – that the Court in McCreery proceeded upon its own assumption that the plaintiff there was a native-born citizen of the U.S. – is unsound.  And McCreery v. Somerville provides no support at all for the holding in Wong Kim Ark, which is tainted by Gray’s various misquotes, some of which have been confirmed by the U.S. Supreme Court in Sullivan v. Burnett.

There is no excuse for Justice Gray failing to mention the warning by the Supreme Court in Sullivan v. Burnett.  It was an 1881 decision.  Gray joined the Court in December, 1881.

Justice Story’s error made no difference to the outcome of McCreery v. Somerville, but Justice Gray’s errors makes all the difference to his reliance upon McCreery in Wong Kim Ark.

Part 2: JACK MASKELL’S CRS MEMO CONTAINS BLATANTLY FRAUDULENT ANALYSIS OF McCREERY v. SOMERVILLE.

Jack Maskell’s latest Congressional “research” memo on POTUS eligibility failed to unearth the McCreery misquote as repeated in Wong Kim Ark.  Unfortunately, the memo takes inspiration from Justice Gray’s cavalier quotation operation by going one step further in concocting authorities out of thin air which do not exist anywhere other than the mind of its author, who has committed the cardinal sin of legal memo writing by advocating rather than educating.

The first thing one learns at law school in Legal Research and Writing 101 are the rules pertaining to the composition of a memorandum of law.  This is a document usually requested by a partner from an associate.  A common situation occurs when the partner is heading to court for an argument, and with limited time available he assigns the task of research to a subordinate.  The associate is required to write an objective memo advising the partner of the best possible arguments for both sides.

If the associate then offers to the partner a one-sided memo which slants the law in favor of their client, and the partner is thereafter surprised in court by opposing counsel with authorities and arguendo which were not included in the memo, said partner will be offering said associate free limo service to the unemployment line.

Maskell’s “memo” is a complete failure as a legal memo.  It presents only that which advocates for eligibility whilst steadfastly avoiding that which does not.  And the evidence presented is intentionally misleading.

In a previous report, I highlighted Maskell’s incredibly deceptive practice of Frankensteining quotes out of thin air then attributing them to the US Supreme Court even though the Court said no such thing.

The U.S. Supreme Court has never issued either of the following statements, permutations thereof:

The petitioner, born of alien parents in the United States, is a natural-born citizen of the United States.

The petitioner, born in the US of one alien parent and one citizen parent, is a natural-born citizen of the United States.

Since the US Supreme Court has never issued an opinion stating the above, Jack Maskell has attempted to speak for the Court as to this issue.  For example, on pg. 13 of the CRS memo, at Footnote 61, Maskell states:

“61 169 U.S. at 661-662, discussing McCreery v. Somerville, 9 Wheat. 354 (1824), where, the court noted, that such rule of natural born citizenship by birth within the country ‘of course extended to the Colonies, and, not having been repealed in Maryland, was in force there.’ “

Based upon this footnote, it would appear that both Justice Gray’s discussion of McCreery v. Somerville in Wong Kim Ark, as well as the Supreme Court’s actual opinion in McCreery v. Somerville, contain direct references to the phrase “natural born citizenship”.  But appearances are certainly deceptive.  Neither phrase, “natural born citizenship”, nor “natural born citizen”, appear anywhere in the opinion from McCreery v. Somerville.

And “native-born citizen” was the exact term used by Justice Gray, not natural-born.  This is even more troubling now that we know the opinion of the Court in McCreery never even states that the plaintiff was a native-born citizen, never mind natural-born.   Footnote 61 is a bold fabrication of a Supreme Court holding offered to the public as if it were real.  The entire 53 page CRS memo is stuffed with such fabrications.

Part 3: MINOR v. HAPPERSETT PROVIDES THE EULOGY.

If a blockbuster quote such as is alleged in Maskell’s Footnote 61 really did exist from the US Supreme Court, there would be no need for a 53 page “memo” on the topic.  Such a quote would slam dunk the controversy.  But no U.S. Supreme Court opinion has ever held that a person born in the country of alien parentage is eligible to be President.  That has never happened.

In fact, the only time the US Supreme Court ever did define the class of persons who were POTUS eligible under Article 2 Section 1 was in Minor v. Happersett, 88 U.S. 162 (1874), wherein it was held:

“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.”  Minor v. Happersett, 88 U.S. 162, 168.

There’s a quote for you.  It really exists.  And it tells you exactly who are natural-born citizens; those born in the country of parents who are citizens.  The words are plain-spoken and self-evident.  There are two classes of persons discussed in the above quotation.  Those born in the country of citizen parents were labeled by the Court as “natives or natural-born citizens”, but these were also further identified as being “distinguished from aliens or foreigners”.  The distinction is crucial.

On one side are those who have no citizenship other than that of the United States… as distinguished from those on the polar opposite side who have absolutely no claim to citizenship in the United States; “These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”  Those who fall in between these two extremes make up a third class of persons whose citizenship status, the Court noted, was subject to doubt:

“Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of the parents. As to this class there have been doubts, but never as to the first.”  Id.  (Emphasis added.)

Had this third class been contemplated as having any claim to being natural-born citizens, the distinction employed by the court would not make sense.  The distinction was employed to more specifically identify the class of persons who were natural-born citizens under Article 2, Section 1, Clause 5.  The two classes discussed are in direct polar opposition to each other.  Had this distinction not been employed, it might be argued that those born in the country of one citizen parent were also natural-born.  But the distinction leads to the necessary conclusion that the Court in Minor was identifying a two-citizen parent rule.

For example, a person born in the US to a British father and U.S. citizen mother would, at the time of the adoption of the Constitution (and at the time Minor v. Happersett was decided), be considered as a natural-born subject of the U.K.  Whether this child would be, at his birth, a citizen under the 14th amendment, was left undecided by the Court in Minor.  But let’s assume that the child was a U.S. citizen.  Where does that child fit into the distinction offered by the Court in Minor?  The child is not on either polar extreme, since the child was not exclusively a US citizen at birth, nor was the child exclusively a British subject at birth.  He does not fit into the distinction.

By choosing two extremes – those who, at their birth, are nothing but U.S. citizens – “as distinguished from aliens or foreigners” – those who, at their birth, are in no way U.S. citizens – the Supreme Court in Minor provided the necessary criteria to properly discern their holding.

Nothing has been left open as to the Minor Court’s definition of a natural-born citizen.  This is further made clear by the Court’s other - somewhat overlooked – federal citizenship holding:

“The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association…

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.” 

Minor v. Happersett, 88  U.S. 162, 165-166 (1874).  (Emphasis added.)

Therefore, when the Court uses the words, “citizen” or “citizenship”, no other meaning may be imputed other than, “membership of a nation”.  But Jack Maskell believes he can overrule this specific holding of the Supreme Court by inserting the words “natural-born” where they do not appear.  “Natural-born” only pertains to a requirement for the municipal office of President.  Those who are natural-born meet that qualification, but all who are citizens, natural-born, naturalized abroad, naturalized here, at birth or later in life, are members of our nation.  The word citizen – according to the Supreme Court in Minor – refers to “membership of a nation, and nothing more“.  It’s the “nothing more” that Maskell fails to recognize.

In Maskell’s CRS memo, he alleges that the following statement from Minor left open the issue of whether persons born of aliens could be considered as natural-born citizens:

“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. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”  Id. at 167-168.  (Emphasis added.)

Reading this passage in light of the definition of “citizen” from pg. 166 of Minor’s unanimous opinion, it becomes evident that what is referred to here is membership in our nation, and nothing more.  Any attempt to insert the words – “natural-born” – into this passage to imply that the court left open the issue of whether those whose citizenship was in doubt might also be eligible to be President would be in direct opposition to the Court’s very holding of the case.  This expression of doubt must be limited to the political status of the person, not to their eligibility to hold a municipal office.  Political status is a legal term of art which means, “membership in a nation, and nothing more”.  Presidential eligibility refers to municipal status.  The holding not only determined Virginia Minor’s citizenship, it directly defined “citizen”, and that definition remains the law of the land today.

First, on pgs. 165-166, the Court defined the meaning of the word “citizen”.  Then, on pgs. 167-168, the court defined the class of “natural-born citizens”.  The Court left open the issue of who were “citizens” under the 14th Amendment, which the Court wisely avoided by exercising judicial constraint.  Instead, the Court construed Article 2 Section 1, Clause 5, the natural-born citizen clause.  In doing so, they defined and closed that class to persons born in the country to parents who are citizens.

The Minor Court’s unanimous opinion and definition of natural-born citizen have never been overruled or even questioned.  In fact, the very passage defining the natural-born citizen class was re-stated in Justice Gray’s opinion from Wong Kim Ark.  Had he intended to take issue with that definition, or to expand it, then his opinion would certainly contain something like this:

Wong Kim Ark is a natural-born citizen eligible to be President.

But no such statement exists.  It’s also important to remember at all times that the Court in Minor specifically avoided construction of the 14th Amendment, thereby defining the class of natural-born citizens and indentifying Virginia Minor as a member of that class.  Virginia Minor directly petitioned the Court to determine that she was a citizen under the 14th Amendment.  But the Minor Court declined to construe the 14th Amendment, and thereafter set about defining the class of persons who were natural-born citizens of the United States in determining that she was a citizen.

In 1996, the US Supreme Court’s majority opinion by Justice Breyer in Ogilvie Et Al., Minors v. United States, 519 U.S. 79 (1996), stated that when the Court discusses a certain reason as an independent ground in support of their decision, then that reason is not simply dictum:

“Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an ‘independent’ ground in support of our decision, id., at 334. We cannot accept petitioners’ claim that it was simply a dictum.”

The Minor Court’s construction of Article 2, Section 1, Clause 5, of the United States Constitution was the independent ground by which the Court avoided construing the 14th Amendment’s citizenship clause.

Therefore, such construction is precedent, not dicta, despite POTUS eligibility not being an issue.  The Court determined it was necessary to define the class of natural-born citizens, and the definition is current legal precedent.

Had the Court in Wong Kim Ark identified him as a natural-born citizen, there would have been no need to construe the 14th Amendment, just as it wasn’t necessary to construe it to determine Virginia Minor’s citizenship.  But Wong Kim Ark was not natural-born, and therefore the Court was required to construe the 14th Amendment to determine his citizenship status.

Again, had Justice Gray’s opinion intended to state that Ark was natural-born, there would be a sentence in Gray’s opinion stating, Wong Kim Ark is a natural-born citizen.  But there isn’t.  No amount of tongue twisting can insert those words where they do not exist and do not belong.

The same is true for the Supreme Court’s unanimous opinion in Minor v. Happersett.  Had the court intended to say – Some authorities go further and include as natural-born citizens children born within the jurisdiction without reference to the citizenship of the parents  – then that is exactly what the US Supreme Court would have said.  But they didn’t.

And the same can be said for the framers of the 14th Amendment.  Had they intended to include the words “natural-born citizen” in the Amendment, then that is exactly what they would have done.  But they didn’t.  Any attempt to read those words into the 14th Amendment would render Article 2, Section 1, Clause 5, to be superfluous.  And that goes directly against our entire body of national jurisprudence on the issue of statutory construction.

I will more thoroughly address the issue of statutory construction in the days ahead.  (Since the state of Georgia will be hearing this issue on Jan. 26, 2012, I have decided to come forward with everything I have now, rather than waiting to publish my book.)

Leo Donofrio, Esq.


[See commenting rules here.]