Tuesday, December 30, 2008

Talk About Hypocrites

Plenty of pols and pundits have had a field day making fun of those of us who believe the constitutional eligibility requirements for being president of the United States should be enforced in accordance with its original intent. "Blah", they say. That would mean Barack Obama cannot become president because he is not a natural born citizen as the term was understood to mean at the time of the adoption of the U.S. Constitution in 1787. Ergo, we're just going to infer he's a natural born citizen because his mother was a U.S. citizen at the time of his birth, even if his father was not.

In lockstep, those same pols and pundits, including Obama himself, are instructing the U.S. Senate to ignore the law and the Constitution and refuse to appoint Roland Burris as Obama's Senate replacement. The Constitution calls for it and Illinois law requires Gov. Rod Blagojevich to appoint Obama's replacement. Because the governor is facing a yet-to-be filed indictment [which the prosecutor is now saying won't be forthcoming until April] and the General Assembly has commenced impeachment proceedings against him, the powers that be, none of whom have clean hands in this matter, want to defer the appointment to Lt. Gov. Pat Quinn, who presumbably will become governor under the Illinois Constitution if Blagojevich resigns, or is impeached and convicted by the General Assembly. The impeachment process, to date, has been a complete embarrassment.

Just weeks ago, the Illinois General Assembly met in a special session for the purpose of passing legislation requiring a special election to fill Obama's vacancy. Democratic House Speaker Mike Madigan decided his daughter, Attorney General Lisa Madigan, might not be able to win the special election should she decide to seek the seat. Despite pleas from Republicans to act immediately, Madigan blocked the legislation. Blagojevich had even agreed to sign the legislation if the legislature made it applicable to all appointments by the governor to the U.S. Senate and not just this special election.

Daughter Madigan had already been laughed out of the Illinois Supreme Court for attempting to unconstitutionally have Blagojevich relieved of his duties because of disability. Lt. Gov. Pat Quinn wants to appoint Madigan so he can get her out of the way for his 2010 bid for governor and appoint an attorney general replacement for her, further strengthening his position. Secretary of State Jesse White may want to run for governor himself, and he is refusing to perform his ministerial duty to sign the appointment of Burris made by the governor and to forward it to the U.S. Senate. Senate Majority Leader Harry Reid has already announced the Senate will defy the U.S. Constitution and refuse to seat Burris. And President-elect Obama is seconding Reid on that action.

If this weren't such serious business, it would be funny. There's certainly plenty of material there for people who make their living as stand-up comedians. The piety of these people to actually think they are any better than Blagojevich. Hypocrites, all of them, I say. Forget the fact that Burris has greater qualifications than anyone else who aspires to this post, including the guy who created this mess by being elected president. Only in Illinois could politicians make Blagojevich appear a little saner and cleaner than he appeared just weeks ago as he was being hauled off in handcuffs by FBI agents.


Ted said...

Challenge, can anyone prove this wrong?:–

1. Constitution Article II requires USA President to be “natural born citizen”.

2. BHO’s website admits his dad was Kenyan/British, not American, citizen when BHO was born.

3. BHO is therefore not a “natural born citizen” (irrespective of Hawaiian birth or whether he may be a 14th Amendment “citizen” of USA) — as confirmed in the Senate’s own McCain qualification resolution agreed to by BHO.

4. Supreme Court has already docketed two upcoming conferences, 1/9/09 and 1/16/09 — between dates Congress counts electoral votes (1/8/09) and Presidential inauguration (1/20/09) — to address Berg Case and fashion relief on BHO’s eligibility to be President.

5. Since no facts are in dispute, Supreme Court rules on Summary Judgment to enjoin BHO’s inauguration as President.

6. Therefore, BHO is not inaugurated as President.

7. Vice President Elect Biden is inaugurated Acting President under the 20th Amendment to serve until new President is determined — the procedure for which determination to be set out by Congress and/or the Supreme Court so long as in conformance with the Constitution.

MissouriDemocrat said...

Nice piece of fiction Ted. We have him, he is our president-elect and none of your side are going to make this stick. There is no proof he was not born in Hawaii and thus a US Citizen. None! All this crap these people make up is just fiction becvause they can't stand a black man as predient. As for what AI said about Illinois, I totally agree. The Governor made his appt. Harry Reid and the rest of them should stand aside becaues his nominee is imprecable.

Gary R. Welsh said...

Our Supreme Court has made clear that Congress' authority is limited to determining qualifications under the Constitution. Burris meets the qualifications to be a senator. This case should be taken to the federal courts immediately. Burris will prevail and be seated as a U.S. Senator if the law is followed by the courts.

margie said...

Ted you are correct. The only way he could become a legal President, is if the Birth Certificate States Two American Parents. We were taught this in Grade school. Throw them all in jail, that allows an illegal Presidency.

Gary R. Welsh said...

MD, It really is getting frustrating just how ignorant the American public is on the meaning of "natural born." It has nothing to do with where Obama was born. His father was a Kenyan citizen. That's all we need to know. That means he is not a natural born citizen. That's before we begin the discussion of how he became an Indonesian citizen when he was 6. Barry knows what the constitution says--didn't he teach it at the UoC for several years? The guy is the biggest fraud in the history of American politics. Our dumbing- down public education system paved the way for this abomination. Nobody has a clue what's in the Constitution. More people know the name of Britney's latest illegitimate child than what are the qualifications to be president of the U.S.

IndyPaul said...

Ted & AI: The plain meaning of 'natural born citizen' is a citizen by birth, which Obama is. It is pure conjecture to claim that the 'original intent' is otherwise. The Senate's resolution regarding McCain dealt with persons born to citizens overseas, and has no impact on the question of a person born in the US.

The Supreme Court does not 'fashion relief' in its docketing conferences. It determines whether or not to hear cases. The Berg case was dismissed for lack of standing, and did not reach the Summary Judgment stage. Therefore, the only review the Supreme Court would have, even if it did decide to hear the case, is that of the standing issue, and the pripriety of the dismissal.

The Senate can delay seating Burris in order to conduct an investigation, which it should probably do, considering the circumstances. I suspect in the end he will be seated, and currently see no legitimate reason why he should not be.

"This mess" is purely Blago's. Beyond a thorough investigation, posturing on not seating Burris is not productive, IMHO. It only detrcts from the real issue in Illinois - the impeachment - and many greater issues to be dealt with in Congress.

Gary R. Welsh said...

John McCain is a natural born citizen who came into this world in the country of Panama. He is natural born because both parents were U.S. citizens in service to their country with total allegiance to the U.S. at the time of his birth. Obama was born as a citizen of two different countries--that of his mother and that of his father. Natural born is only possible for those who are born of U.S. citizen parents in allegiance to the U.S. and over whom the country exercises total jurisdiction. The U.S. shared jurisdiction over Obama with the British Commonwealth of which Kenya was a part in 1960. Obama fails the natural born requirement. He will never be a legitimate president of these United States as far as this attorney is concerned. I took an oath to uphold the constitution when I was sworn in as an attorney. Obama has total disdain for the U.S. Constitution as written. He expressed disappointment that the U.S. Supreme Court did not go far enough in redistributing wealth in this country--as if that is the role of the Supreme Court.

MissouriDemocrat said...

IF this were all so clear, that is the determination of "natural born", then there might be a situation here where the Congress, Courts and present President might have to face the issue. None of those bodies having done so whether on their own or as a result of come court action, Mr. Obama is president-elect. All this discussion is a waste of energy that could be applied to making the rest of our lives better.

Neal Taflinger said...

"Obama has total disdain for the U.S. Constitution as written."

Sounds a lot like our current administration only Obama isn't pursuing illegal wiretaps and torturing people. An interesting post, though, and I agree that Blagojevich's appointment has to be honored until it can be proven that he or Burris broke the law in the process.

M Theory said...

Why do we even bother with laws since they do what they want anyway?

IndyPaul said...

From Professor Gabriel Chin's "Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship":

"Senator McCain was born in 1936 in the Canal Zone to U.S. citizen parents. The Canal Zone was territory controlled by the United States, but it was not incorporated into the Union. As requested by Senator McCain's campaign, distinguished constitutional lawyers Laurence Tribe and Theodore Olson examined the law and issued a detailed opinion offering two reasons that Senator McCain was a natural born citizen. Neither is sound under current law. The Tribe-Olson Opinion suggests that the Canal Zone, then under exclusive U.S. jurisdiction, may have been covered by the Fourteenth Amendment's grant of citizenship to "all persons born . . . in the United States." However, in the Insular Cases, the Supreme Court held that "unincorporated territories" were not part of the United States for constitutional purposes. Accordingly, many decisions hold that persons born in unincorporated territories are not Fourteenth Amendment citizens. The Tribe-Olson Opinion also suggests that Senator McCain obtained citizenship by statute. However, the only statute in effect in 1936 did not cover the Canal Zone. Recognizing the gap, in 1937, Congress passed a citizenship law applicable only to the Canal Zone, granting Senator McCain citizenship, but eleven months too late for him to be a citizen at birth. Because Senator John McCain was not a citizen at birth, he is not a "natural born Citizen" and thus is not "eligible to the Office of President" under the Constitution."

One of the two bases for Tribe's opinion, and the Senate's subsequent resolution regarding McCain's eligibility, is that the Fourteenth Amendment definition of citizenship: "all persons born . . . in the United States." McCain, having been born in Panama, which was never incorporated into the US for Constitutional purposes, has a far weaker claim to natural born citizenship via this path than does Obama, who was born in a U.S. State. McCain, at birth, was a citizen of Panama and only retroactively made a US Citizen.

I also took an oath to uphold the constitution when I was sworn in as an attorney. I look forward to the rehabilitation of respect for the document after this last eight years.

Gary R. Welsh said...

The 14th Amendment's reach is to a "citizen" not a "natural born citizen." As I've explained repeatedly, the term "natural born citizen" is only used in the constitution to refer to the qualifications of the president and vice president. Elsewhere, including qualifications for Senators and Representatives, the word "citizen" is used. The 14th Amendment did not change what a "natural born citizen" means, although it clearly expanded the number of people who might be considered "natural born citizens" and citizens alike to include slaves, who previously had been considered the property of their slave owners. The constitutional analysis of Chin is extremely flawed. Justice Story made it clear in his commentaries on the constitution that "natural born citizenship" status is not lost because a person is living in another country at the request of, and in service to, his own country. Again, it should have nothing to do with where the child is born. What matters is the citizenship status of the parents at birth. If one of the parents was not a U.S. citizen, natural born status can't be conferred on the child. Obama could have just as easily taken by his father to Kenja and raised as a citizen there. Indeed, Obama admits Kenja considered him a citizen there until he reached the age of 21 and took no affirmative step to assert citizenship.

IndyPaul said...

Story's commentaries state that a person on public business in a foriegn country does not loose his status as a natural born citizen thereby. He does not address whether the offspring of such a person born while the person is in a foreign country is also a 'natural born citizen'. I understand your belief that the place of birth shouldn't matter to status as a 'natural born citizen', but it is apparent that it does.

In 1790, Congress passed an act stating that children of US citizens born overseas should be considered natural born citizens. A 1795 Act removed the language "natural born", and provided only that such children would be citizens. If such persons were already included in the definition of 'natural born', why would the 1790 Act have been necessary? Also, does the Naturalization power enable Congress to alter the definition in the Constitution? It would seem that an amendment would be necesary to do that.

"In Montana v. Kennedy, the Supreme Court construed an 1802 statute to mean that “[f]oreign-born children of persons who became American citizens between April 14, 1802 and 1854 were aliens." Thus, children of members of the armed forces serving overseas, and diplomats and civil servants in foreign posts, were not only not “natural born citizens” eligible to be President, they were not citizens at all."

Numerous statutes, including sec. 1993 in effect at the time of McCain's birth, granted citizenship to those born overseas to citizen parents. That statute, however, did not include the Canal Zone, a defect which was only corrected in 1937, after McCain's birth. Why were all of these statutes necessary, if those born overseas to citizen parents were already 'natural born citizens' and thus also citizens??

The Tribe-Olsen opinion did not make the argument that the Constituton itself included foreign born persons - it relies upon the 14th Amendment and the 1937 statute. If it were really a viable theory, don't you think Tribe and Olsen would have picked up on it?? If Chin's anaysis is flawed for discussing the 14th Amendment, then Tribe and Olsen's analysis, and the Senatorial resolution relying upon it, is as well.

Gary R. Welsh said...

To illustrate the absurdity of that analysis, Paul, I had a client, both of whose parents were Saudi citizens. While working on business in San Diego for a brief period, his wife gave birth to their daughter. A few months later they moved back to Saudi Arabia where the daughter lived until she was in her late 20s. When she decided to visit the U.S., she was surprised she needed a U.S. passport and not a visitor visa to enter the U.S--she was considered a citizen. There is no way in hell our founding fathers would have intended to make her a natural born citizen and not John McCain. I don't agree with Olsen and Tribe's analysis. It was actually prepared to head off a challenge to Obama inasmuch as it was prepared to aid McCain. It was the Senate Democrats, not the Senate Republicans, who pushed the McCain resolution. The Democrats pushing it were two early supporters of Obama. Obama knew exactly what he was doing. Story's analysis focused on the parent's locus because the parent's status determined the child's status. U.S. citizen father passed natural born status to his child. His point that the father didn't lose the status while overseas in service to his country meant his child didn't lose it as well.

Gary R. Welsh said...

I should add that the first immigration law enacted after the adoption of the U.S. Constitution defined "natural born citizen" consistent with how it was defined in the Laws of the Nation. That definition was later repealed because some Members of Congress thought constitutional terms shouldn't be defined by statute. You can be made a citizen by statute; however, you cannot be made a natural born citizen by statute. You are either are one or you're not at birth based upon your parent's citizenship status and their loyalty and allegiance to the nation. Obama's father was not a U.S. citizen, held no allegiance of loyalty to the U.S. and, therefore, his child could not become a natural born citizen whether he was born in Hawaii or Kenya, even though he was a citizen by statute.

IndyPaul said...

I'm sorry, Gary, but you are mixing your justifications based upon your desired outcome. If you claim to be an originalist, which you have, than the fact that the phrase's original meaning leads to what you claim to be absurd results today is of no moment. It would have been highly unusual at the time of the Constitution for anyone but a diplomat to travel to this country and parent a child here without intending to stay and become a citizen. Its easy to understand then, why the founders didn't account for this. Are you suggesting that the Constitution is a "living document" and should be adjusted to today's realities of world travel?? If so, your justification for reaching back past Supreme Court decisions and a multitude of apparently unecessary legislation to a claimed 'original meaning' of the phrase "natural born citizen" looses cred.

Obama is a natural born citizen because he was born in the US. That is the accepted meaning of natural born. McCain is a citizen only by virtue of a statute which passed after his birth.

This has been an interesting discussion. Its not one, however, that the Supreme Court will be having any time soon. Happy New Year.

Gary R. Welsh said...

At this point, you and I can only argue over what it means, Paul. What you should be able to agree with me on is that the issue has never been decided. On that point, I find it extremely insulting for people who claim to be learned in the law to condemn people (and label them kooks) for arguing an interpretation of "natural born citizen" that is supported by well-respected treatises written at the time of the adoption of our constitution. I never agreed with those who have long argued that the Second Amendment does not confer a fundamental right to own a gun, but I respected that they had arguments in their favor. Yet, the Supreme Court didn't answer that question after all these years until this past year and even then by only a 5-4 vote. This is not a clear cut issue. I am certain that if this case ever were heard by the Supreme Court, there would be at least 2-3 justices who would agree with my interpretation.

IndyPaul said...

Yes, it has never been decided. Where do I find these treatises?

Gary R. Welsh said...

Laws of the Nation is the first place I would suggest you look. It has been cited in Supreme Court decisions in the past.

IndyPaul said...

I believe you may be referring to the Minor v. Happersett decision (1875), discussed in the anti-Obama Natural Born Citizen blog. The blog highlights the following paragraph, acknowledging that the case did not quote or cite from the Laws of Nations, but claiming that the definition id taken therfrom:

"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 [p168] 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."

The blog then proclaims that the case 'clearly established' the definition of natural born citizen when it did no such thing. The case does make clear that there was no universally accepted definition of the term at the time of the adoption of the Constitution. The blog also does not mention these passages of Minor:

"From this it is apparent that from the commencement of the legislation upon this subject alien women and alien minors could be made citizens by naturalization, and we think it will not be contended that this would have been done if it had not been supposed that native women and native minors were already citizens by birth.

But if more is necessary to show that women have always been considered as citizens the same as men, abundant proof is to be found in the legislative and judicial history of the country."

There goes the theories that citizenship may only be passed by men, and that a native minor is a citizen by birth regardless of parentage.

If that were not enough, there is the Wong Kim Ark decision (1898), which explicitly held that a child born of foreigners residing in the US is a citizen at birth, in the face of a dissent warning that such a reliance on birth place would allow a child born of foreign parents residing in the US to be eligible for the presidency.

"bills have been introduced from time to time in Congress which have challenged the conventional interpretation of the citizenship clause of the 14th Amendment and have sought to actively and explicitly deny citizenship at birth to U.S.-born children of foreign visitors or illegal aliens. No such bill has ever come close to being enacted; even if one did, it would presumably achieve its intended result only if the Supreme Court, in a new case, were to conclude that Wong Kim Ark had been wrongly decided and that the precedent set in 1898 should be repudiated. Some attempts have also been made to supersede Wong Kim Ark by amending the Constitution itself, but no such amendment has ever been approved by Congress in order to be voted upon by state legislatures." (Wikipedia)

It appears to me that while there was no accepted meaning of natural born citizen at the time the Constitution was adopted, the 14th amendment and subsequent decisions of the Supreme Court have made claer that all those born in the the US are citizens at birth, thus 'natural born citizens.'