Archive for June, 2011

THE EXPRESS LANE TO NATURAL BORN CLARITY.

Posted in Uncategorized on June 30, 2011 by naturalborncitizen

**RED ALERT UPDATE**

UPDATED 11:16 AMJustia.com is censoring references to US Supreme Court cases which cite Minor v. Happersett as precedent for the citizenship issue.  I have briefed this issue in full in my comments to this report.  I have include links and screenshots.  Please archive the information and images before Justia.com can fix it.

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The US Supreme Court definition of an Article 2 Section 1 natural-born citizen as stated in Minor v Happersett is strictly limited to those persons born in the United States to parents who were citizens.  Below, I will make this crystal clear with stealth to reduce the complexities of the issue into a refined exposition and mantra the average citizen will easily comprehend.

NATURAL BORN CLARITY

The Supreme Court in Minor specifically avoided construing the 14th Amendment as to the issue of whether Virginia Minor was a US citizen.  Instead, the Court looked no further than the natural-born citizen clause in Article 2 Section 1.  The Court held that Minor was a member of the “class” of persons who were natural-born citizens.  They defined this class as those born in the US to “parents” (plural) who were citizens.  (For more detailed analysis of this issue, see my two previous reports, here and here.)

The Court also noted that the “citizenship” of those born to non-citizen parents was subject to doubt.  Since Virginia Minor was in the class of natural-born citizens, that doubt didn’t need to be resolved.  The Court exercised judicial restraint and thereby avoided construction of the 14th Amendment as to the citizenship issue.

Such avoidance and restraint were called for.  In order for the Court to act, there must be a genuine controversy with regard to the laws in question.  Since there was no controversy before the Court involving a 14th Amendment citizenship issue, the Court decided the issue on other grounds, specifically Article 2 Section 1.

Now we turn to US v. Wong Kim Ark.  In that case, the US Supreme Court held that (some) persons born in the United States of alien parents were “citizens”.  In doing so, the Court stated that it was specifically construing only the 14th Amendment.  And here lies the rub of clarity:

If Wong Kim Ark had been a natural-born citizen, the Supreme Court would never have reached the 14th Amendment issue (just as it didn’t reach it in Minor.)

That statement is a perfectly true mantra.  Read it again… and again, until it sinks in.  Then share the mantra.  There is no antidote for it.  There is never an antidote for truth.

THE NATURAL BORN CITIZEN CLAUSE HAS NOT BEEN AMENDED OR REPEALED.

Minor and Wong Kim Ark were both decided years after the 14th Amendment had been adopted.  Minor avoided construing the 14th Amendment, while Wong Kim Ark required it.  Since Wong Kim Ark was not a natural-born citizen under Article 2 Section 1, the Supreme Court looked to the 14th Amendment to grant him citizenship.

The 14th Amendment did not repeal or amend Article 2 Section 1 (but it did repeal part of Article 1 Section 2).  Furthermore, while other parts of Article 2 Section 1 have been amended (by the 12th and 25th Amendments), the natural-born citizen clause has never been amended.

The official US Constitution is hosted at archive.gov where it highlights those sections of the Constitution which have been repealed or modified.  The archive.gov site states:

“The Constitution of the United States: A Transcription

Note: The following text is a transcription of the Constitution in its original form.  Items that are hyperlinked have since been amended or superseded.”

Go to the link provided for the official Constitution and you will see that the natural-born citizen clause is not hyperlinked because it has not been amended or superseded.

Neither the Court in Minor nor Wong Kim Ark alleged that the 14th Amendment superseded Article 2 Section 1.  If the 14th Amendment had superseded the natural-born citizen clause, the Court in Minor would have been required to construe the 14th Amendment.

In US v. Wong Kim Ark, the US District Attorney argued that Ark was not a citizen because his parents were aliens.  Ark was a person from the other “class” discussed in Minor whose citizenship was in doubt.  Since Wong Kim Ark was not a natural-born citizen, his citizenship could not be determined by Article 2 Section 1.  Therefore,  the Supreme Court looked to the 14th Amendment to grant Wong Kim Ark US citizenship.

Again, if Wong Kim Ark had been a natural-born citizen, the Supreme Court would never have reached the 14th Amendment issue (just as it didn’t reach it in Minor.)

The Court determined Wong Kim Ark was a “citizen” under the 14th Amendment, but in doing so the Court did not expand the “class” of persons who were eligible to be President.  This is because the Court specified clearly that it was only construing the 14th Amendment, not Article 2 Section 1.  Article 2 Section 1 and the 14th Amendment are mutually exclusive sections of the US Constitution.

ONLY NATIONAL LAW MAKES BINDING PRECEDENT.

The Supreme Court’s definition of the natural-born citizen clause in Minor is not common law, natural law, or international law.  Vattel is not cited by the Supreme Court in Minor.  And Vattel does not make US law.  The Court’s holding in Minor is national law.  It is United States law.

Those other sources may have been consulted, but when the Court held that Minor was a citizen under Article 2 Section 1 because she was born in the US of citizen parents, that definition became national law.  Therefore, Minor supersedes all other sources on this point.  It is a direct Constitutional interpretation and definition.

The other sources are not necessary.  Relying upon them actually weakens the authority of Minor.  There is no need for insecurity in the face of supporting Supreme Court precedent.

On November 22, 2008, Justice Scalia addressed the Federalist Society, stating:

“Natural law has nothing to do with originalism.  I mean, I believe in natural law, but unfortunately I have no way to show or demonstrate that my understanding of it is the same as yours, or is the same as anybody else’s.  I don’t enforce natural law.  I suppose God enforces natural law.  I enforce United States law.  United States law should not contravene natural law, but that’s not my problem… I worry about, ‘What does this text mean?’ ”   (Emphasis added.)

Earlier in that same speech, Justice Scalia stated:

“What has happened can only be compared to the naive belief that we used to have in the common law… Erie Railroad, you know, blows that all away… and we sort of chuckle at how naive the world could have been ever to have thought there was a common law…”  

Do not get sidetracked by extraneous theoretical sources.  We have United States Supreme Court precedent which defines a natural-born citizen – under Article 2 Section 1 – as a person born on US soil to parents who were citizens.  Neither Obama nor McCain fit that definition.  Neither are eligible to be President.

While some may argue McCain was eligible based upon a reference to Vattel, McCain simply does not fit the strict US Supreme Court definition of natural-born citizen as defined in Minor.  To fashion an exception for McCain not found in the actual text from Minor is purely partisan and unfair.

Unlike others commenting on eligibility, I have always maintained that both McCain and Obama were not eligible.  I brought my law suit all the way to the Supreme Court – prior to the election – arguing against both candidates’ eligibility.  I was the first person to raise this issue with the American people.  And I hold them both accountable for the damage done to our Constitution as a result of neither having more concern for the nation than they did for themselves.

Leo Donofrio, Esq.

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MINOR V. HAPPERSETT IS BINDING PRECEDENT AS TO THE CONSTITUTIONAL DEFINITION OF A NATURAL BORN CITIZEN.

Posted in Uncategorized on June 24, 2011 by naturalborncitizen

[UPDATED: Dec. 27, 2011 – See green text below regarding SCOTUS syllabus.  I have made corrections as explained below to my own error on the topic.]

[This is a follow up to my last report, US SUPREME COURT PRECEDENT STATES THAT OBAMA IS NOT ELIGIBLE TO BE PRESIDENT. ]

[UPDATED – 8:32 PM June 24, 2011. Updated material appears below in red.]

Since my last report, many people have asked why the definition in Minor v. Happersett of a “natural-born citizen” (as a person born in the US to parents who are citizens) is binding legal precedent.  The answer is in the Court’s holding that Virginia Minor was a US citizen…because she was born in the US to parents who were citizens.  That part of the actual holding is listed in the official syallbus of the case.

And furthermore, Minor was the first case to hold that women are equal citizens to men.  To this day, that case is still cited as the first US Supreme Court decision which recognized that women were, in fact, citizens.  It is still precedent for that determination.  Google [ “minor v happersett” “women are citizens”  ] and review the results.  A multitude of articles discuss the holding of Minor – that women are US citizens.

But most important is the case itself.  The official syllabus written by the US Supreme Court, which states: .   The syllabus and/or headnote for each case is not written by the US Supreme Court.   See the following official SCOTUS disclaimer:

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337 .)

Back in the 19th century the official court reporter created headnotes more often than a syllabus, but neither have ever been considered to be law or were ever written by the court.  I made an error in this post and have therefore corrected it, while leaving the original mistake for historical accuracy.  

  The syllabus for MInor v. Happersett states:

“1. The word “citizen ” is often used to convey the idea of membership in a nation.

2. In that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United states, as much so before the adoption of the Fourteenth Amendment to the Constitution as since.”  (Emphasis added.)

That’s a These are direct holdings of the case.  Hence, it is they are stated at the the top of the syllabus.  (In this case, that syllabus reflects the holdings of the case.  Regardless, I must reiterate that the syallbus is not law.  As you will see below, the syllabus in this case stated these points clearly, but the headnotes are private property of the court reporter and are not included in the opinion of the case or as law.  Had the headnote misinterpreted the law or facts, as is sometimes the case, this would have been more problematic, but in the case of Minor v. Happersett, the reporter got it right.)

It is incorrect to state that Mrs. Minor lost the case entirely.  This is not true.  The US Supreme Court did not hold that the Constitution granted voting rights to men while denying such rights to women.  The Court in Minor held that the Constitution did not grant anybody a right to vote, man or woman.

But in doing so, the US Supreme Court first had to determine if Mrs. Minor was a US citizen.  The Court’s holding states that she was a US citizen because she was born in the US to parents who were citizens.

The Court also held that the Constitution did not grant anyone a right to vote.  So, our country chose to amend the Constitution by the 19th Amendment and thereafter all citizens were directly granted a right to vote by the Constitution.

The 19th Amendment did not create a right to vote in the Constitution, the Amendment only protects against discrimination based upon sex once a state has granted persons the right to vote.  This is an important distinction in that Minor v. Happersett’s ruling on voting rights is still good law and has not been superseded by the 19th Amendment.

But the Court in Minor did make a direct holding that Mrs. Minor was, in fact, a US citizen.  The Court established her citizenship by definining the “class” of  “natural-born citizens” as those born in the US to parents who were citizens.  Then the Court included Virginia Minor in that class thereby deeming her to be a US citizen.  And they did this by specifically avoiding the 14th Amendment and by specifically construing Article 2 Section 1.

Before moving on to the issue of whether citizens have the right to vote, the Supreme Court in Minor stated their holding as to the citizenship of Mrs. Minor (and therefore as to all women and men):

“The Fourteenth Amendment did not affect the citizenship of women any more than it did of men. In this particular, therefore, the rights of Mrs. Minor do not depend upon the amendment. She has always been a citizen from her birth and entitled to all the privileges and immunities of citizenship. The amendment prohibited the state, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States, but it did not confer citizenship on her. That she had before its adoption.”  (Emphasis added.)

The independent ground the Court used to determine that Virginia Minor was a US citizen is stated as follows:

“Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that ‘No person except a natural-born citizen or a citizen of the United States at the time of the adoption of the Constitution shall be eligible to the office of President,’ …

“The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. ”  (Emphasis added.)

Read that passage very carefully, and you will see that the US Supreme Court clearly defined “natural-born citizen” by two independent remarks:

1.  “…all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.”  First, the Court states that these persons are “citizens”.  But then it makes a second statement about this class –

2. “These were natives or natural-born citizens, as distinguished from aliens or foreigners.”  This class of citizens are part of a class defined as “natural-born citizens”.  They are citizens, natural-born.  This distinguishes them from all other citizens.  If this were not the case, it would have been sufficient for the Court to stop at the first statement concerning their citizenship.

But the Court didn’t stop there. Because the Court was avoiding the 14th Amendment, the Court went to the second step and defined this class to be different from all other citizens.  This class did not require the 14th Amendment to be US citizens.

Whether persons born in the US to non-citizen parents were “citizens” was not a question before the Minor Court because Mrs. Minor was natural-born, whereas Wong Kim Ark was not.  The determination of his citizenship required the 14th Amendment, whereas Mrs. Minor’s did not.

It was held that Mrs. Minor was a US citizen – as the syllabus states in point 2 – because she was born in the US to parents who were citizens.  This was the independent ground that springs forth precedent.  (See Ogilvie Et Al., Minors v. United States, 519 U.S. 79 at 84 (1996)).

JUDICIAL RESTRAINT

It’s important to note that the Supreme Court in Minor did not hold that all women born in the US were citizens.  Only those born to citizen parents in the US were deemed to be citizens by the Court in Minor.

Since the Court was not required to construe the 14th Amendment – as to Mrs. Minor’s citizenship – the Court refrained from doing so.  Instead, the Court construed Article 2 Section 1 as an independent ground by which the Court determined that Mrs. Minor was a natural-born citizen since she had been born in the US to parents who were citizens.

Those outside the natural-born citizen “class” were subject to doubt regarding US citizenship.  And the Court in Minor exercised judicial restraint by avoiding that issue.  When Wong Kim Ark was decided in 1898, some of those doubts were resolved in favor of US citizenship for those persons not in the class of natural-born citizens.  But that case did not open the class of natural-born citizens to include persons born in the US without citizen parents.

With regard to this being binding precedent, the important point here is that Virginia Minor’s citizenship had to be established by the Court before it could move on to the voting issue.  Establishing her citizenship was part of the holding.  Had Mrs. Minor not been determined by the Supreme Court to be a US citizen, the Court would not have reached the issue of whether US citizens are granted a right to vote.  The Court would have exercised the same judicial restraint it exercised in avoiding the 14th Amendment issue.  On this point, the Court stated:

“Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different states. Under this, it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist, the case must be dismissed.”

WONG KIM ARK DID NOT EXPAND THE CLASS OF NATURAL BORN CITIZENS.

The Court in Wong Kim Ark did not expand the class of natural-born citizens defined in Minor.  The simplest way to put it is thus:

If Wong Kim Ark had been a natural-born citizen, then the Supreme Court would never have reached the 14th Amendment issue (just as it didn’t reach it in Minor.) 

That is the simplest way to accurately state the issue.  Read it again:

If Wong Kim Ark had been a natural-born citizen, then the Court would never have reached the 14th Amendment issue (just as it didn’t reach it in Minor.)

Since Wong Kim Ark didn’t fit into the class of natural-born citizens as defined by Minor, the Court looked to the 14th Amendment to grant him US citizenship.

HOLDING EQUALS PRECEDENT

The direct holding of the Supreme Court in Minor set a binding precedent.  Those pretending that the Supreme Court’s direct construction and definition (in Minor) of the natural-born citizen clause is dicta are mistaken.  They need to review the first two points of the syllabus, which state:

“1. The word “citizen ” is often used to convey the idea of membership in a nation.

2. In that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United states, as much so before the adoption of the Fourteenth Amendment to the Constitution as since.”  (Emphasis added.)

Check the words “if born of citizen parents” again.  They are stated at the very top of the syllabus and more than once in the Opinion of the Court.  This is a direct holding of the case.  It is clearly precedent.  For it not to be precedent, the Court could not have held that Mrs. Minor was a US citizen.  But since that determination was part of the holding, the grounds by which they made that determination are precedent, not dicta.

The recognition of US Supreme Court precedent excluding Obama from POTUS eligibility is a theoretical game changer.  This places a permanent asterisk* upon his administration’s authority.  It may lead to multiple challenges against official actions of his administration.

If he wishes to be a true statesman to this nation, President Obama ought to directly petition the US Supreme Court for a declaratory judgment as to his eligibility rather than let the asterisk fester.

Leo Donofrio, Esq.

US SUPREME COURT PRECEDENT STATES THAT OBAMA IS NOT ELIGIBLE TO BE PRESIDENT.

Posted in Uncategorized on June 21, 2011 by naturalborncitizen

[UPDATED: Dec. 15, 2011 – see update in RED below]

The title of this article is correct.  After having completed a more thorough review of the relevant US Supreme Court cases discussing the Constitution’s natural-born citizen clause, I have discovered precedent which states that a natural-born citizen is a person born in the jurisdiction of the US to parents who are citizens.  Read that again.  I said precedent, not dicta.  The precedent holds that Obama is not eligible to be President of the United States.

Up until the publication of this report today, all discussion of the natural-born citizen issue (from both sides of the argument) agreed there had never been a precedent established by the US Supreme Court, and that the various cases which mentioned the clause did so in “dicta”.

Dicta are authoritative statements made by a court which are not binding legal precedent.

Black’s Law Dictionary defines “precedent” as a “rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases“.

Precedent that must be followed is known as binding precedent.  Under the doctrine of stare decisis, a lower court must honor findings of law made by a higher court.  On questions as to the meaning of federal law including the U.S. Constitution, statutes, and regulations, the U.S. Supreme Court’s precedents must be followed.

It can no longer be denied that there is controlling US Supreme Court precedent concerning the definition of a natural-born citizen according to Article 2 Section 1 of the US Constitution.  I predict satori will overcome those of you who have labored over this issue.  This is not a remote obscure reading.  It is, when revealed, a clear undeniable holding and binding precedent established by the highest Court of our nation which specifically defines an Article 2 Section 1 natural-born citizen as a person born in the US to parents who are citizens.

Therefore, Obama – according to US Supreme Court precedent – is not eligible to be President.

PRECEDENT ESTABLISHED BY MINOR V. HAPPERSETT

The direct US Supreme Court precedent is stated in Minor v. Happersett, 88 U.S. 162 (1875).  Furthermore, the precedent stated in Minor is consistent with other US Supreme Court cases – both before and after Minor – which discuss the natural born citizen issue.  While that part of the holding in Minor regarding woman’s suffrage was superseded by the 19th Amendment which Constitutionally established a woman’s right to vote – the rest of the case is good law.  [UPDATED Dec. 15, 2011 – The voting rights issue was not superseded by the 19th Amendment, and it remains good law today.  Please see JUSTIA.COM SURGICALLY REMOVED “MINOR v HAPPERSETT” FROM 25 SUPREME COURT OPINIONS IN RUN UP TO ’08 ELECTION. ]And the remaining precedent stated regarding the definition of “natural-born citizen” – with regard to Article 2 Section 1 of the US Constitution – is still binding upon all lower courts.

Therefore, lower court decisions – such as the holding in Ankeny v. Governor of the State of Indiana – which have misconstrued the US Supreme Court’s holding in Minor v. Happersett are wrong.  Below, we will review what the Indiana Court of Appeals had to say and explain why they got it wrong.  But first we must revisit Minor v. Happersett.

THE SUPREME COURT IN MINOR V. HAPPERSETT DIRECTLY CONSTRUED THE US CONSTITUTION’S ARTICLE 2 SECTION 1 NATURAL BORN CITIZEN CLAUSE

Before revisiting Minor, we must revisit Wong Kim Ark, 169 U.S. 649 (1898) to review a clearly erroneous statement made by Justice Gray concerning the prior holding in the Minor case:

“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: ‘The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.’ “  (Wong Kim Ark at 655.)

This unfortunate remark by Justice Gray contains a clearly erroneous statement.  The Supreme Court in Minor did not construe the 14th Amendment as to the issue of citizenship.  Gray is absolutely wrong.  The Court in Minor construed Article 2 Section 1, not the 14th Amendment.  For over a century, it has been wrongly assumed that the Court in Minor did construe the 14th Amendment, and that the holding of Minor was later superseded by Wong Kim Ark.  This is not correct.

A more careful reading of the Supreme Court’s opinion in Minor makes it clear that it did not construe the 14th Amendment with regard to the citizenship of the woman who wished to vote.  The question presented was whether, since the adoption of the 14th Amendment, women had gained the right to vote.  The Supreme Court in Minor held that nowhere in the Constitution, including the 14th Amendment, was anyone, man or woman, granted a right to vote.  And it was only this part of the Minor case which was superseded by the 19th Amendment.

The other issue decided by the Court in Minor required the Supreme Court to determine if the woman was, in fact, a US citizen.  As to this determination, the Court did not construe the 14th Amendment.  In fact, the Court specifically avoided construing the 14th Amendment with regard to her citizenship.  Instead, the Supreme Court in Minor chose to construe Article 2 Section 1:

“There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment ‘all persons born or naturalized in the United States and subject to the jurisdiction thereof ‘ are expressly declared to be ‘citizens of the United States and of the State wherein they reside.’ But, in our opinion, it did not need this amendment to give them that position

“The fourteenth amendment did not affect the citizenship of women any more than it did of men. In this particular, therefore, the rights of Mrs. Minor do not depend upon the amendment. She has always been a citizen from her birth, and entitled to all the privileges and immunities of citizenship. The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her. That she had before its adoption. If the right of suffrage is one of the necessary privileges of a citizen of the United States, then the constitution and laws of Missouri confining it to men are in violation of the Constitution of the United States, as amended, and consequently void. The direct question is, therefore, presented whether all citizens are necessarily voters.  (Emphasis added.)

There you have it.  The Court stops short of construing the 14th Amendment as to whether the woman in question was a US citizen.  The Court made a certain, direct determination that Mrs. Minor was a US citizen before the adoption of the 14th Amendment and that she did not need the 14th Amendment to be a US citizen.

The Court then, having determined that she was a US citizen, avoided any construction of the 14th Amendment as to her citizenship status.   Therefore, the holding in Minor is in no way superseded by Wong Kim Ark.

The Court in Minor went on to decide the issue of whether citizens are granted a right to vote by the Constitution, holding that it did not.  Again, this part of the holding was superseded by the 19th Amendment, but the determination that Mrs. Minor was a “natural-born citizen” is still controlling precedent.

Since the Court in Minor specifically avoided construing the 14th Amendment as to citizenship, it is clear that Justice Gray’s statement – concerning the citizenship passage by Justice Waite in Minor – was clearly erroneous.  The Supreme Court in Minor chose to construe Article 2 Section 1 instead of the 14th Amendment.  As such, Minor is the only US Supreme Court case which has directly construed the Article 2 Section 1 natural-born citizen clause.   Therefore, Minor’s construction below creates binding legal precedent:

“Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that  ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President, and that Congress shall have power ‘to establish a uniform rule of naturalization.’ Thus new citizens may be born or they may be created by naturalization.

“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”  (Emphasis added.)

Whether the holding here was influenced by Vattel is not truly important.  Sure, it looks just like Vattel’s definition, but Vattel does not make legal precedent – the US Supreme Court does.  All that matters here is what the Supreme court held.  So we must carefully examine the actual words stated by the Supreme Court.  We must not allow ourselves to be guided by what the Supreme Court did not say.  What the Court actually said is what makes law.

In the above passage, the Court noted that Mrs. Minor was born in the US to parents who were citizens.  The Court stated that such persons were “natural-born citizens”.  The Court also stated – as to such persons – that their “citizenship” was never in doubt.

By recognizing Mrs. Minor as a member of the class of persons who were natural-born citizens, they established her citizenship.  Establishing her citizenship was required before they could get to the issue of whether she had the right to vote.  In doing so, the Court in Minor directly construed Article 2 Section 1 of the US Constitution.

The Court also noted that some authorities include as “citizens” those born in the jurisdiction without reference to the citizenship of the parents.  The Court refers to these people as a different “class”.  The Court in Minor refused to comment on the “citizenship” of such persons since Mrs. Minor was not in that class.  They didn’t need to reach the 14th Amendment to determine if Mrs. Minor was a US citizen since the Court previously established that she was a “natural-born citizen”.  Read the following again:

“It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.

This class is specifically defined as “natural-born citizens” by the Court.  The other class – those born in the US without citizen “parents” – may or may not be “citizens”.   But the Minor Court never suggested that this other class might also be natural-born citizens.  

It’s quite the opposite.   The Minor Court makes clear that this class are not Article 2 Section 1 natural-born citizens.  If this other class were natural-born there would be no doubt as to their citizenship.

The Minor Court refrained from making a “citizenship” determination as to that class, but the Court did note that they were a different class.  Later, in 1898, the Court in Wong Kim Ark took the question on directly as to who is a citizen under the 14th Amendment, but that case did not directly construe Article 2 Section 1, whereas Minor did.

In order to avoid construing the 14th Amendment, the Court in Minor had to define those who fit into the class of “natural-born citizens”.  Mrs. Minor fit into that class.  Mr. Obama does not.

This is so very evident by the fact that the Minor Court specifically states that the “citizenship” of those who have non-citizen parents was historically subject to doubt.  Whether the 14th Amendment nullified those doubts was irrelevant to the Court in Minor, since Mrs. Minor was a natural-born citizen.

The 14th Amendment specifically confers only “citizenship”.  In Minor, the US Supreme Court directly recognized that natural-born citizens were a class of citizens who did not need the 14th Amendment to establish citizenship.  The class of natural-born citizens was perfectly defined in the Minor case.

Therefore, we have a direct determination by the US Supreme Court which defines a natural-born citizen as a person born in the US to parents who are citizens.  The citizenship of this class has never been in doubt.  The citizenship of the other class was in doubt.  But even if that doubt was erased – as to their citizenship – that they are not natural-born citizens was established as precedent by the Supreme Court in Minor.  In order for that precedent to be reversed, one of two things are necessary:

– a Constitutional amendment which specifically defines “natural-born Citizen” more inclusively than Minor did , or;

– a Supreme Court case which overrules the definition of natural-born citizen in the Minor case

We have neither.

Minor was decided seven years after the adoption of the 14th Amendment.  The Supreme Court in Minor did not consider anyone but those born of citizen parents on US soil to be natural-born citizens.  Later, in Wong Kim Ark, the Supreme Court stated that persons born on US soil to (some) alien parents were “citizens”, but that case specifically construed only the 14th Amendment.

Read again Justice Gray’s statement as to Minor, “In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said…”  Nope.  Not true.  Gray was wrong in that Justice Waite did not construe the 14th Amendment in the quoted passage.  Chief Justice Waite construed Article 2 Section 1.  Whereas, Justice Gray construed the 14th Amendment.  Therefore, the two cases are not in conflict.

ANKENY V. GOVERNOR OF THE STATE OF INDIANA

The Minor case has been severely misconstrued in the Ankeny opinion issued by the Indiana Court of Appeals.  That court quoted Minor’s natural-born citizen language, then stated:

“Thus, the Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.”

False.  The Minor Court did not leave that question open.  Nowhere in the Minor opinion does it state that the class of persons who are natural-born citizens is an open question. The Ankeny Court has it backwards. 

The Supreme Court in Minor stated that the “citizenship” of persons who were not natural born citizens was an open question. 

That is the most important sentence I’ve ever written at this blog.  So please read it again.

The “citizenship” of those born to non-citizen parents was a question that the Minor Court avoided.   But they avoided that question by directly construing Article 2 Section 1.  In doing so, the Supreme Court in Minor defined the class of persons who were born in the US to citizen parents as “natural-born citizens”.

Since Minor, no Amendment has been adopted which changes that definition, and no other Supreme Court case has directly construed Article 2 Section 1.

The Supreme Court in Wong Kim Ark only construed the question of who was a “citizen” under the 14th Amendment, it did not construe Article 2 Section 1.  Therefore, Minor and Wong Kim Ark do not compete with each other at all.  Minor is the standing precedent for construction of the natural-born citizen clause in Article 2 Section 1, and Wong Kim Ark is the standing precedent as to “citizenship” under the 14th Amendment.

WONG KIM ARK SPECIFICALLY DEFERRED TO PRIOR PRECEDENT REGARDING THE DEFINITION OF NATURAL BORN CITIZEN.

That the majority opinion in Wong Kim Ark limited its holding strictly to the issue of 14th Amendment citizenship – and did not make any new determination as to Article 2 Section 1 – is evident from the following statement by Gray regarding the dissent by Justice Curtis in the Supreme Court’s earlier ruling in Dred Scott v. Sandford:

“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.’

19 How. 60 U. S. 576. And, to this extent, no different opinion was expressed or intimated by any of the other judges.”

At first glance, Gray’s reliance upon the dissent’s passage in the Dred Scott case would appear to contradict everything I have written above.  But it doesn’t.  It actually confirms my analysis.

Justice Gray chooses his words carefully and so we must examine them carefully.  Note where Gray says, “And, to this extent, no different opinion was expressed or intimated by any of the other judges.”  Well, if we are talking only about “citizenship”, then – to this extent – Justice Gray is correct.  But if we are talking about the definition of a “natural-born citizen”, then Gray is grossly mistaken.

The Dred Scott majority may not have expressed a different opinion as to “citizenship”, but the majority’s definition of a natural-born citizen is vastly different than that of Justice Curtis in his dissent.  The majority opinion in Dred Scott, citing Vattel directly, stated:

“The citizens are the members of the civil society, bound to this society by certain duties, and subject to its authority; they equally participate in its advantages. The natives or natural-born citizens are those born in the country of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.”

Again:

“I say, to be of the country, it is necessary to be born of a person who is a citizen, for if he be born there of a foreigner, it will be only the place of his birth, and not his country. The inhabitants, as distinguished from citizens, are foreigners who are permitted to settle and stay in the country.”

Vattel, Book 1, cap. 19, p. 101.

From the views here expressed, and they seem to be unexceptionable…”

Unexceptionable is defined as; ” not open to any objection or criticism.”  The Supreme Court majority, in the Dred Scott case, clearly states that a natural-born citizen is a person born in the US to parents who are citizens.  Therefore, Justice Gray’s reliance upon the dissent in the Dred Scott case is strictly limited to its discussion of “citizenship” by Gray’s very choice of the words, “to this extent”.

Since Gray stated that none of the other justices in the Dred Scott case expressed a different opinion than Curtis did in his dissent, it is obvious that Gray’s statement only applies to general citizenship, and not to the definition of those who fall into the class of natural-born citizens.  The majority in Dred Scott did, in fact, express a completely different opinion than Curtis on the issue of who was an Article 2 Section 1 natural-born citizen.

Gray’s use of the words, “to this extent” – with regard to the dissent by Curtis – indicates that the extent to which the holding in Wong Kim Ark applies is to the definition of “citizenship”, not to the definition of who is a natural-born citizen eligible to be President.  The precedent stated by the Court in Minor still stands to this day.

THE US SUPREME COURT DEFINITION OF PRECEDENT

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 our decision”, then that reasoning 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 Supreme Court in Minor specifically construed Article 2 Section 1 by defining – as natural-born citizens – those persons born in the US to parents who were citizens.

Again, the Supreme Court specifically avoided the 14th Amendment, by specifically construing Article 2 Section 1.

In order to determine whether Mrs. Minor had the right to vote, the Court first needed to determine if she was a US citizen.  They determined that she was a citizen because she was in the class of “natural-born citizens”.  And, in doing so, they made it clear that persons born of non-citizen parents were not natural-born citizens.

The Court left open the question of whether those born of non-citizen parents were “citizens”.  But the Court did not leave open their specific construction of Article 2 Section 1.  Their definition of a “natural-born citizen” was the core reason they found Mrs. Minor to be a citizen.   Therefore, the Minor Court established binding precedent as follows:

“…[A]ll 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...”

Please also note that the Court here makes specific reference to both aliens and foreigners as distinguished from natural-born citizens.  Aliens are just that, aliens.  They are not citizens.  But we have always had many foreigners in this country who were citizens.  Those who came here from foreign lands were foreigners naturalized as citizens.  Some who were born in the US with dual citizenship – like Obama – were also citizens of the nation of their parents.  These are citizens, but also foreigners.  The Court in Minor made the careful distinction that a natural-born citizen is not an alien or a foreigner.

CITIZENS MAY BE BORN OR NATURALIZED

A common misconception of those who argue in favor of Obama’s eligibility is that if one is, at the time of their birth, a US citizen, then that person is also a natural-born citizen.  False.  This was unequivocally established by the majority holding in Minor, which states:

“Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it providesthat ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,’and that Congress shall have power ‘to establish a uniform rule of naturalization.’ Thus new citizens may be born or they may be created by naturalization.”

Again, at first glance this appears to provide a neat little soundbite for Obama supporters.  But it doesn’t.  The quote above is taken out of context.  The Court’s opinion goes on to state:

“Under the power to adopt a uniform system of naturalization Congress, as early as 1790, provided…that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens.  These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since.”

Here, the Minor Court cites the first naturalization act of 1790 to the effect that persons born of US citizen parents – outside the jurisdiction of the US – are “considered as natural-born citizens”.  So, here we can see that while the Minor Court only recognizes two paths to citizenship, birth and naturalization… it is clear that some persons who, at the time of their birth, are US citizens, require naturalization for such status.

So, it’s clear that while there are only two paths to US citizenship, birth and naturalization, those two paths sometimes merge.  But naturalized citizens are not eligible to be President.  (The Minor Court failed to mention that the words “natural-born” were repealed from the naturalization act of 1795.)

Additionally, the current US Department of State Foreign Affairs Manual, at “7 FAM 1131.6-2 Eligibility for Presidency“, comments on the 1790 act as follows:

“This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.”

This is most likely because the statute did not actually deem such a person to be a natural-born citizen, the act simply stated that such a person was to be “considered as” a natural-born citizen.

The Minor Court also noted that the “substance” of the 1790 act, which granted US citizenship at birth via naturalization, had remained as law up until 1875 when the Minor case was decided.  So, clearly, while citizens may either be born or naturalized, some born citizens are simultaneously naturalized at birth.  Naturalized citizens are not natural-born citizens.  Therefore, they are not eligible to be President.

I am not arguing that Obama was naturalized.  But Minor does establish that not all “born citizens” are “natural-born”.  Minor also gives an unequivocal definition of who fits into the class of natural-born citizens.  Obama does not fit into that class.  Born in the US to a citizen mother and a British/Kenyan father, Obama was born with dual nationality and dual allegiance, part US citizen, part foreigner.  Minor makes a clear distinction between natural-born citizens and aliens or foreigners.

No Constitutional amendment supersedes Minor by defining natural-born citizen in a more inclusive way.  No US Supreme Court case has overruled it.  Justice Gray’s statement that the Court in Minor construed the 14th Amendment in the passage quoted is wrong.  The Court in Minor directly construed Article 2 Section 1 while directly avoiding construction of the 14th Amendment.

The Supreme Court in Wong Kim Ark directly construed the 14th Amendment and specifically avoided construction of Article 2 Section 1.  The two cases are not in contradiction.  They are consistent.

Wong Kim Ark is specifically limited to determining who is a citizen under the 14th Amendment.

Minor is specifically limited to determining who is a US citizen, natural-born.

According to the US Supreme Court precedent established by Minor, Obama is not eligible to the office of President of the United States.

Leo C. Donofrio, Esq.

Recent WND Inquiries Appear To Have Established Obama’s Birth In Hawaii.

Posted in Uncategorized on June 9, 2011 by naturalborncitizen

I don’t know how this slipped below my radar, but back on May 9, 2011, World Net Daily published an investigative report entitled, “Bombshell: U.S. government questioned Obama citizenship“, which – in my opinion – conclusively established that Obama was born in Hawaii.  In that report, Aaron Klein revealed official documents stored in US immigration files which chronicle the troubles faced by Obama’s mother’s second husband, Lolo Soetoro, when he petitioned the US Government for a visa extension.

The WND report correctly notes that US officials expressed an interest in determining whether Soetoro’s step-son, President Obama, was actually a US citizen.  The US officials who were handling Soetoro’s Visa extension application made copious notes in the file and the official comments therein illustrate that these officials doubted some of Soetoro’s statements.  So, they decided to investigate the relationships listed in his application.

Below is the text of the relevant portion of the WND report:

One critical exchange is dated August 21, 1967, from Sam Benson, an officer at the Southwest Immigration and Naturalization Service office in San Pedro, Calif.

Benson’s query stated, “There is nothing in the file to document the status of the spouse’s son. Please inquire into his citizenship and residence status and determine whether or not he is the applicant’s child within the meaning of Section 101(b)(1)(B) of the Act, who may suffer exceptional hardship within the meaning of Section 212(a).”

The reference is to the Immigration and Naturalization Act, which defined a “child” as an unmarried person under 21 years of age who, among other qualifiers, could be a “stepchild,” whether or not born out of wedlock, provided the child had not reached the “age of eighteen years at the time the marriage creating the status of stepchild occurred.”

A response to Benson’s inquiry came from one “W.L. Mix” of the central immigration office, who determined Obama was a U.S. citizen.

Mix replied: “Pursuant to inquiry from central office regarding the status of the applicants’ spouse’s child by a former marriage.”

“The person in question is a United States citizen by virtue of his birth in Honolulu, Hawaii, Aug. 4, 1961. He is living with the applicants’ spouse in Honolulu, Hawaii. He is considered the applicant’s step-child, within the meaning of Sec. 101(b)(1)(B), of the act, by virtue of the marriage of the applicant to the child’s mother on March 5, 1965.”

The files do not state how the office determined Obama was born in Honolulu.

__________________________________________

So here we see the US Government looking into an application for Visa extension by Soetoro.  Further review of those documents reveal that the officials did not trust everything in Soetoro’s application.  Therefore, the Government officials wanted to establish whether Obama Jr. was truly a US citizen.  They made a direct inquiry on this very issue.   And they concluded that Obama was born in Hawaii on August 4, 1961.  Again, this was established by “W.L. Mix” of the central immigration office.

Having taken such an exhaustive look into Soetoro’s application, and especially considering the government’s examination of Obama’s citizenship, I don’t see how the government officials involved would have overlooked the fact that Stanley Ann Dunham would have been out of the US and far away in Kenya on the date W.L. Mix established as DOB for Obama – if Obama had been born in Kenya.

Furthermore, a report today by WND, “Documents show marriage of Obama’s parents a sham“, illustrates that a similar investigation as to Obama, Sr. was conducted when he was also applying for a Visa extension. Those official documents include a handwritten memo from the file, written by (presumed) INS official William Wood, which states that Obama Sr.’s son, “Barack Obama II”, was born in Honolulu on August 4, 1961.

Moreover, in today’s WND article, Jerome Corsi concludes, as a result of reviewing all of the relevant INS documents, that if President Obama was born in Kenya, Dunham must have traveled there without Obama Sr., who was definitely in the US on August 4, 1961, according to these US Government records.  This analysis by Corsi is correct.  Obama Sr.’s presence in the US at the time of Obama’s birth is now sufficiently documented.  This fact alone adds very heavy weight to President Obama having been born in the US.

I don’t see how two sets of US government officials, independently investigating the relationships between Soetoro and Dunham on one hand, and Obama Sr. and Dunham on the other, could both fail to reveal that Dunham would have been in Kenya at the time of Obama Jr.’s birth.  The government officials would’ve had access to Dunham’s passport files.  The contents thereof were relevant to the investigations since she was married to both men, and the marriages were relevant to immigration status, as was the issue of children.

Those who persist in accusing Obama of not being born in Hawaii do so in light of official government investigations, between 1961 and 1966, which established his birth, to the satisfaction of inquisitive government immigration officials, as having taken place on August 4, 1961 in Honolulu, Hawaii, USA. 

As far as I’m concerned, the issue is settled with a massive presumption of authenticity.  I do not see how the information published by WND regarding US immigration official W.L. Mix’s investigation into Obama’s US citizenship flew so far below the radar. That is the single most important fact I have come across that establishes Obama’s birth in Hawaii.

CLOSURE IS POSSIBLE WITH REGARD TO BC ISSUE.

For those who insist on keeping the birther circus alive and kickin’ (despite the info listed above), I believe there is a simple way to settle the issue once and for all. I have found two references to the fact that the US Government keeps passport “issuance” records for all passports issued. The most recent is from Congressional testimony on the House floor from March 10, 1998:

“In addition, the committee on conference is aware that on weekends there is no Departmental procedure or mechanism to access the passport issuance records maintained by the Consular Affairs Bureau. The result is that when a foreign law enforcement authority inquires about the status of a person or passport on the weekend, the State Department does not or cannot respond. This is a clear deficiency in border security procedures.”  (See pg. 41/53 in the PDF counter.)

The second reference is to a US Government GAO report – written for the Secretary of State – that argued for the destruction of passport application materials. The destruction of such materials was the basis of more conspiracy theories as to Dunham’s various passport applications and renewals requested in a previous FOIA by Christopher Strunk.

Unfortunately, the FOIA request by Strunk, which has been well documented online, failed to request passport “issuance” records for Stanley Ann Dunham. Strunk only requested passport “application” materials. And the government’s reply to his FOIA request was specifically limited to passport “application” materials. Since Strunk didn’t specifically ask for passport “issuance” records, the government was not obligated to search for those records… but they do exist and they can be found.

The GAO report – which refers to passport issue cards – documents the destruction of passport application materials, but it notes that the Government retains all “old passport issue cards”:

“During numerous discussions with GSA about document retention periods, Department officials have presented many reasons for the continued storage of original passport applications. They have placed great emphasis in pointing out that old passport applications can be used to derive the citizenship of others…But other ways are just as reliable and effective… Should the Department need to verify if a parent was ever issued a passport, old passport issue cards have been microfilmed and can be referenced by the Department.”  (See pg. 44/70 in the PDF counter.)

Therefore, if Stanley Ann Dunham had been issued a passport prior to President Obama’s birth, there will be a passport issue card available with that information.  If no such card exists, Dunham did not have a passport prior to August 4, 1961, and Obama could not have been born in Kenya.  She would have needed a passport to be in Kenya.

It is my opinion that a proper FOIA request for passport issue cards (or copies thereof) will establish that Stanley Ann Dunham did not have a passport prior to August 4, 1961. Such a request must be SPECIFICALLY designed to eliminate all wiggle room.  I suggest the following wording:

Please forward all passport issue cards and/or microfilm or microfiche copies, or any other copies thereof – or any other documents – which reference the issuance of any passport for Stanley Ann Dunham.  To be perfectly clear in my FOIA request, please understand that I am NOT interested in passport application materials.  Please limit your response and documents to passport issue cards or copies thereof – as well as any other documents – which the government possesses for Stanley Ann Dunham that refer to her being issued a US passport.

Any FOIA request should NOT ask for more than the passport issuance materials.  I cannot stress enough how important it is that the FOIA be strictly limited as suggested above.  Such a FOIA should end this conspiracy theory with authority and finality.

I should note that I have come across a certain rabid Obama eligibility supporter who alleges to have done a proper FOIA request as to passport issuance materials.  I do not trust this source and I do not have access to the EXACT wording of the alleged FOIA request. Suffice to say that anyone who wants true closure on the place of birth issue should do a FOIA – strictly worded as I have suggested above – requesting passport issuance documents for Stanley Ann Dunham.

I nominate the folks at WND to take this on and make all aspects public since they are the main news resource for this issue.  They are invited to take the suggested FOIA request as written above (in red) and to run with it.

The fourth estate has the power and responsibility to see this through.  They should thoroughly document the exact wording of the FOIA request, and they should also document the stages of compliance by the government to such a request as is required by law.  Definitive documentation regarding whether Stanley Ann Dunham held a passport prior to August 4, 1961 is readily available to the public.

The Government is required to respond to the EXACT request made.  No mention of passport application materials should be forwarded by the government in response to a properly worded FOIA request for passport issuance cards (or other issuance documents).  We know the cards/documents exist and that they are necessary to the government as is proved by the GAO report and Congressional testimony.

The GAO notes in their report from 1981 that while passport application materials may be destroyed, “passport issue cards” are kept.  This is beyond dispute.

If no passport issuance documents can be found for Obama’s mother prior to his date of birth, then he could not have been born in Kenya.

I am not a person who needs to see anymore proof.  I believe now and have always believed President Obama was born in Hawaii.  But if you still have doubts, this line of inquiry is crucially necessary.

The BC issue and the birther circus surrounding it have served Obama well. Like Chester Arthur before him, the nation was thoroughly distracted by the place of birth faux conspiracy whilst the true legal question concerning his dual national status – despite place of birth – was obscured.

Everyone loves a big green juicy salacious conspiracy theory. That’s much more fun than a certified boring legal question, the answer to which was never in the hands of Obama, whereas the BC always was.  He who controls the game, controls the outcome.  (“Ever get the feeling you’ve been cheated?” – Johnny Rotten)

I am writing this to clear your attention spans for what will be the most authoritative and well documented analysis I have to offer on the dual national issue concerning Obama’s perpetual POTUS eligibility dilemma.  I do not want the circus to obstruct the law.  If you understand the importance of this post, you will pass it on far and wide so the attention of the nation can focus on the true Constitutional crisis.

Leo Donofrio, Esq.