Friday, December 05, 2008


Last night, after winning a songwriting honorarium, I received as a prize three one hundred dollar seats to see "WICKED". What a brilliant and wonderful show. This cast is really incredible. The Stephen Schwartz score is absolutely brilliant and Winnie Holzman's book is amazingly clever adapting the Gregory Mcguire novel in a very unique and wonderful way. More about this in another blog. But the issue I want to bring up is of course the issue over Obama's citizenship status. If the naysayers are right than we would have to invalidate every action and every law passed by the first eight presidents of the United States.The special term "Natural Born Citizen" is used in particular as a requirement for eligibility to serve as President or Vice President of the United States. Section 1 of Article II of the Constitution contains the clause:“ No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. Along came another amendment to the Constitution that defined this further: the 12th Amendment to the Constitution says that "No person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States." Now along comes The Fourteenth Amendment to the Constitution. Now guess what? That little amendment provides an additional source of constitutional doctrine stating that birth "in the United States" and subjection to U.S. jurisdiction at the time of birth, entitles one to full citizenship: That amendment's little clarifer says that “All persons born or naturalized in the United States and subject to the Jurisdiction thereof, are Citizens of the United States and of the State wherein they reside. . However, the full text of the fourteenth amendment does not mention the phrase "natural born citizen," nor does it address Presidential qualifications. The phrase "natural born Citizen" is not defined anywhere in the Constitution, as is true with most Constitutional terms. Section 8 of Article I of the Constitution confers on Congress the power "to establish a uniform Rule of Naturalization..." This power has been construed to include defining the characteristics of a "natural born citizen", as well as the conditions of "naturalization".The 1790 Congress, many of whose members had been members of the Constitutional Convention, provided in the Naturalization Act of 1790 that "And the children of citizens of the United States that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens." In addition George Washington was president of the Constitutional Convention and President of the United States when this bill became law. If Washington disagreed with this definition, he could have vetoed this bill. However, in 1795 the Congress passed the Naturalization Act of 1795 which removed the words "natural born" from this statement to state that such children born to citizens beyond the seas are citizens of the U.S., but are not legally to be considered "natural born citizens" of the U.S. This was done to clarify for those living at that time who was and who was not a "natural born citizen" per the framers intent at that time, since the 1790 Act had introduced confusion into that subject in regards to the use of those words in the Constitution. Furthermore dear doubters, George Washington was also President in 1795, and thus he was aware of this change. And if he disagreed with the clarification and change in the wording in the new act in 1795, a stubborn headed George would have vetoed the Naturalization Act of 1795.It is thought the origin of the natural born citizen clause can be traced to a letter of July 25, 1787 from John Jay (who was born in New York to George Washington (who was born in Virginia), presiding officer of the Constitutional Convention. Check out what John Jay wrote: "Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen." Note here, dear reader the Emphasis of born in the original source.There was no debate, and this qualification for the office of the Presidency was introduced by the drafting Committee of Eleven, and then adopted without discussion by the Constitutional Convention. But here is the big one-- get ready! During the Hoover administration, Charles Curtis served as Vice President, even though he was born in the Kansas Territory prior to Kansas becoming a state.The 2003 Equal Opportunity to Govern Amendment, a proposed amendment to the US Constitution, would, if adopted, have removed the prohibition against naturalized citizens holding the office of the President. Look at your history, boys and girls! The requirements for citizenship and the very definition thereof have changed a lot since the Constitution was ratified in 1788. Congress first recognized the citizenship of children born to U.S. parents overseas on March 26, 1790, under the first naturalization law: "And the children of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural born citizens." The Fourteenth Amendment mentions two types of citizenship: citizenship by birth and citizenship by law (naturalized citizens): "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."All persons born in the United States, except those not subject to the jurisdiction of the U.S. government (such as children of foreign diplomats) are citizens under the Fourteenth Amendment. Persons born in the United States, and persons born on foreign soil to two U.S. parents, are born American citizens and are classified as citizens at birth under 8 U.S.C. § 1401. A minority of people question whether persons who were born US citizens and are classified as citizens at birth under U.S. law should also be considered citizens "by birth," whether they should all be considered to be "naturalized," or whether they should be considered "statutory citizens." There is also some debate over whether there is a meaningful legal distinction between citizens "at birth", citizens "by birth" and "statutory citizens" since U.S. law makes no such distinction, nor does the Fourteenth Amendment use the term "at birth." The law governing the citizenship of children born outside the U.S. to one or more US citizen parents status has varied considerably over time. Current U.S. statutes define certain individuals born overseas as "citizens at birth." A minority view interprets the Constitution as meaning that a person either is born in the United States or is a naturalized citizen.[According to this view, in order to be a "natural born citizen," a person must be born in the United States, or possibly an incorporated territory; otherwise, they are a citizen "by law" and are therefore a "statutory citizen," (not necessarily, however, a naturalized citizen, which implies a pre-existing foreign citizenship). Current State Department policy reads: "Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth."However, the State Department is of the opinion that this does not affect those who are born abroad to U.S. citizens and who otherwise meet the qualifications for statutory citizenship. Currently under the Immigration and Nationality Act of 1952 (INA) effective from December 24, 1952 to present, the definition of the "United States" for nationality purposes, was expanded to add Guam; and, effective November 3, 1986, the Commonwealth of the Northern Mariana Islands (in addition to Puerto Rico and the Virgin Islands of the United States). Persons born in these territories on or after December 24, 1952 acquire U.S. citizenship at birth on the same terms as persons born in other parts of the United States; and "Outlying possessions of the United States" was restricted to American Samoa and Swains Island. Supreme Court cases relating to citizenship, generally
Although the U.S. Supreme Court has never specifically determined the meaning of "natural born Citizen," they have occasionally considered the matter in passing. Again this is your history, so pay attention and learn something. The first case
was the historically drumming Dred Scott v. Sandford, decided in the year 1857): It said-- "In regard to the "natural born citizen" clause, the dissent states that it is acquired by place of birth (jus soli), not through blood or lineage (jus sanguinis): 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." (Much of the majority opinion in this case was overturned by the 14th Amendment in 1868.)
United States v. Wong Kim Ark 169 U.S. 649: A person born within the jurisdiction of the U.S. to non-citizens who "are not employed in any diplomatic or official capacity" is automatically a citizen. Then came the case of Perkins v. ELG, 307 U.S. 325 (1939): The US Supreme Court found that a Miss Elg, born of one naturalized US citizen and one foreigner, a Swedish citizen, in Brooklyn, New York was a citizen of the United States. It was somewhat vague about whether she was a natural born citizen or not. By contrast, this decision noted that a Mr. Steinkauler, born in St. Louis, Missouri to two U.S. citizen parents (at least one a naturalized citizen born in Prussia) was a "native-born citizen". Then there was Schneider v. Rusk, 377 U.S. 163 (1964): The Court voided a statute that provided that a naturalized citizen should lose his United States citizenship if, following naturalization, he resided continuously for three years in his former homeland. We start from the premise that the rights of citizenship of the native-born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the 'natural born' citizen is eligible to be President. Cases in other courts relating specifically to the "natural born citizen" clause
Three United States District Courts have ruled that private citizens do not have standing to challenge the eligibility of candidates to appear on a presidential election ballot: Robinson v. Bowen, 567 F. Supp. 2d 1144
. 2008); Hollander v. McCain, 2008WL2853250 . 2008); Berg v. Obama, 08-04083 . 2008) In dicta in each of these cases, it was also opined that if the plaintiffs did have standing, the likelihood of success on the merits (which is part of the legal test for the issuance of a preliminary injunction) would be low. The opinion in one of the cases also cited to a statutory method by which the eligibility of the President-elect to take office may be challenged in Congress. There are several active federal and state lawsuits against Obama charging that he is not a natural born citizen, and therefore ineligible to hold the office of President of the United States. But this is the most interesting of all! There were indeed Presidential candidates born outside the US!
A small minority of people outside mainstream legal thought dispute whether the foreign-born children of US citizens are natural born citizens. While every President and Vice President to date (as of 2008) has either been a citizen at the adoption of the Constitution in 1789, or else born in the United States, there have been some presidential candidates who were born outside the United States. For example there was dear old
Chester A. Arthur (1829-1886), 21st president of the United States, who was strongly considered to have been born in Canada and therefore might not (according to the minority view) have been a natural-born citizen. This was never demonstrated by his political opponents, although they raised the objection during his vice-presidential campaign. He was born to one US citizen parent and a naturalized US citizen from Ireland. Arthur was sworn in as president after President Garfield died after being shot. Then there was dear old Barry Goldwater. Mr. Conservative, as he was known was born in Arizona in 1909, and ran for the Presidency as a Republican Party candidate in 1964. Goldwater's natural born citizenship status was severely questioned because Arizona was a territory of the United States, and did not become a state until 1912. Then there was George Romney, who ran for the Republican party nomination in 1968, was born in Mexico to U.S. parents. Romney’s grandfather emigrated to Mexico in 1886 with his three wives and children after Utah outlawed polygamy. He refused to change his views about polygamy. That alone today would have defeated him at any election! Romney's parents eventually retained their U.S. citizenship and returned to the United States in 1912. Romney was 32 years old when he arrived in Michigan. Romney never received Mexican citizenship, because the country's nationality laws had been restricted to jus-sanguinis statutes due to prevailing politics especially aimed against American settlers.Lowell Weicker, the former Connecticut Senator, Representative, and Governor, entered the race for the Republican party nomination of 1980 but dropped out before voting in the primaries began. He was born in Paris, France to parents who were U.S. citizens. His father was an executive for E. R. Squibb & Sons and his mother was the Indian-born daughter of a British general.RĂ³ger Calero was born in Nicaragua in 1969 and ran as the Socialist Worker's Party Presidential Candidate in 2004 and 2008. In 2008, Calero appeared on the ballot in Delaware, Minnesota, New Jersey, New York and Vermont. Now wait until you hear this one:John McCain, who ran for the Republican party nomination in 2000 and was the Republican nominee in 2008, was born in 1936 at the Coco Solo Naval Air Station in the Panama Canal Zone to U.S. parents. In March 2008 McCain was held barely eligible for Presidency in an opinion paper by former Solicitor General Ted Olsonm and Harvard Law Professor Laurence H. Tribe. In April 2008 the US Senate approved a non-binding resolution recognizing McCain's status as a natural born citizen, but not without a lengthy filibuster. In September 2008 a Federal District judge said that only by his opinion that it was "pretty probable" that McCain was a natural born citizen of the United States owing to the citizenship legislation existing at the time. These views have been criticized by Gabriel J. Chin, Professor of Law at the University of Arizona, who claims that McCain was at birth a citizen of Panama and was only retroactively declared a born citizen under 8 U.S.C.§ 1403.Prominent Elected Officials and Members of a President's Cabinet who are currently ineligible to hold the Presidency The following U.S. citizens are ineligible to become President because neither parent was American, and their mothers were not in America, at the time of their birth:
Gov. Arnold Schwarzenegger is a second-term governor of California. He was born in Thal, Austria. Well, we knew that one-- and Arnold will never run for president BUT Fmr. Sec. Madeleine Albright (who was in line to be president) was a United States Ambassador to the United Nations and U.S. Secretary of State under President Bill Clinton and is currently a Professor at Georgetown University. She was born in Prague, in the former Czechoslovakia. Fmr. Sen. Rudy Boschwitz was a United States Senator from Minnesota and is currently Ambassador to the United Nations Commission on Human Rights. He was born in Berlin, Germany. There's more!
Sec. Elaine Chao is the current U.S. Secretary of Labor and a former Director of the Peace Corps. She was was born in Taipei Taiwan Sec. Carlos Gutierrez is the current U.S. Secretary of Commerce. He was born in Havana, Cuba. So my friends-- always look to history for a portrait of the future. When the first eight presidents were born, they were all born prior to 1787 when the Constitution was ratified- and until that Constitution was ratified there was no United States of America. The Articles of Confederation was all power to individual states and did not recognize America as anything but a confederation. A confederation based on the Ancient Greeks formula unites a people by language, mores, philosophy and common interest but not to govern as a central government. There you are. case closed!

6 comments:

Ted said...

Seems the Supreme Court is waiting to hear from me before issuing a decision on Donofrio, so here goes: Albeit the Court is loathe to enter this dispute, it now has no choice (thanks to the audacious one — and I don’t mean Leo, I mean Barack) and the ONLY WAY to bring closure, knowing CLOSURE IS ABSOLUTELY ESSENTIAL before any Presidential inauguration, is to back the Constitution, meaning, Obama is NOT an Article II “natural born citizen” (albeit he may be a “citizen”) .

Ted said...

REVISED: Seems the Supreme Court is waiting to hear from me before issuing a decision on Donofrio, so here goes: While the Court is more than loathe to enter this dispute, currently it has no choice (thanks to the audacious one — and I don’t mean Leo, I mean Barack) and the ONLY WAY to bring closure, knowing CLOSURE IS ABSOLUTELY ESSENTIAL before any Presidential inauguration, is to back the original intent of the Constitution, meaning, Obama is NOT an Article II “natural born citizen” (albeit Obama may or may not be a “citizen”, a question heated by the steadfast refusal of the DNC or any of the Secretaries of State to require his birth certificate, which the Court will now not have to confront).

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