|Jon McNaughton's "The Forgotten Man"|
California attorney Orley Taitz apparently has a lot of spare time on her hands. She filed a complaint today with the Secretary of State's office challenging Barack Obama's placement on the Indiana ballot because he is not a natural born citizen. Yes, she is correct. Those few Americans like myself left in this country who actually have studied and understand what the U.S. Constitution says about only natural born citizens being eligible to hold the office of president know that Barack Obama is not a natural born citizen because he was a dual citizen due to his father's British citizenship as a Kenyan national. That part of the constitution was rewritten, however, in 2008 without amendment by the same politicians and judges who have been shredding the constitution bit by bit. While I admire Taitz' concern and willingness to fight this battle in futility, Indiana is no state to be filing a ballot eligibility challenge after the 2008 debacle known as Ankeny v. Governor.
The Ankeny opinion, which was authored by Mitch Daniels' first appointee to the Court of Appeals, put on display for everyone to see why Daniels can't be trusted to appoint judges who understand their role as interpreters of the law, not as lawmakers. The 2008 eligibility case was filed in Indiana after Barack Obama had already been elected at the November election but before Indiana's electors had met to cast Indiana's electoral votes for Obama since he carried the state's popular vote. It sought to prevent Gov. Daniels from certifying the electoral vote. Marion Co. Superior Court Judge David Dreyer dismissed the case on procedureal grounds, the same outcome that occurred in every other election challenge filed in 2008. The plaintiffs appealed the decision, and Court of Appeals Judge Elaine Brown, who had silly dreams of becoming a Supreme Court justice, decided to make a name for herself by writing an opinion that would make her popular with the Leftists in this country who don't hide their disdain for anything contained in the U.S. Constitution because it was written by a bunch of dirty, slave-owning white men, and who believe it is the duty of judges to rewrite the document to suit evolving contemporary standards of how the document should read from a decidedly leftist viewpoint.
Judge Brown showed her judicial activism streak by reaching to decide the merits of the challenge in Ankeny since affirming the decision's procedural dismiaal was all that was required of her. Judicial restraint instructs judges not to decide matters that are not necessary to decide cases and controversies before them. Apparently Judge Brown was absent the day that was taught in her constitutional law class in law school. She decided she would be the first judge in the nation to decide what a "natural born citizen" was. As I pointed out previously, both the the trial court and Court of Appeals overlooked a fact I uncovered in the 2008 certification process--namely that the Democratic Party intentionally avoided attesting to Obama's constitutional eligibility in the nominating certificate it filed with the state's elections division as had occurred in prior elections and as the Republican Party had done in its certification of John McCain and Sarah Palin for the 2008 general election ballot.
In writing the first opinion in the nation to rewrite the definition of the natural born citizen clause, Judge Brown engaged in historical revisionism. Obviously she had spent a great deal of time reading blogs and had uncovered the fact that questions were being raised about whether Chester Arthur was constitutionally eligible to serve because he was born to an Irish citizen father, who later became a naturalized citizen after Arthur's birth. "We note that President Obama is not the first U.S. President born of parents of differing citizenship," Judge Brown wrote. "Chester A. Arthur, the twenty-first U.S. President, was born of a mother who was a United States citizen and a father who was an Irish citizen." In fact, it was not learned until relatively recently that Arthur's father was not a citizen of the United States at the time of his birth. Questions about his eligibility in 1880 focused on whether he had been born in Canada instead of Vermont as he claimed, but there was no formal challenge to his eligibility as Judge Brown suggested in her opinion. Historians only recently learned that Arthur had lied about his date of birth to make it appear that he was born later than he was actually born, which may have been related to the timing of when his father became a naturalized citizen. Arthur burned most of his family records prior to his death to hide a number of lies he had fabricated about himself during his lifetime, including his date of birth.
Judge Brown totally misinterpreted the Supreme Court's decisions discussing the meaning of the term natural born citizen in the Minor v. Happersett and the Wong Kim Ark cases. In Minor v. Happersett, the Supreme Court specifically held that a child born to U.S. citizen parents within the United States is a natural born citizen. Judge Brown misread the Minor decision to read that the natural born citizenship clause in Article II is to be read in tandem with the 14th Amendment as if the 14th Amendment amended the definition of a natural born citizen, and that upon the adoption of the 14th Amendment, a natural born citizen includes those born within the United States to alien parents. The decision said no such thing. In actuality, the Minor court said there was doubt as to whether a person born within the U.S. to alien parents was even a citizen at birth, let alone a natural born citizen, even after the adoption of the 14th Amendment. Judge Brown also misrepresented the Minor decision as relying on English common law to define a natural born citizen when it in fact relied on natural law--the Law of Nations and not English common law was what the framers drew upon in adding the natural born citizen clause to Article II. Wong Kim Ark only decided the question left open by Minor--whether a person born within the United States of alien parents was a citizen under the 14th Amendment. The Supreme Court in Wong Kim Ark never declared Wong Kim Ark, an American-born child of Chinese permanent residents, to be a natural born citizen; rather it found him to be a citizen at birth by virtue of the 14th Amendment.
There's plenty of analysis that has totally discredited Judge Brown's badly-flawed opinion in Ankeny. There's little more for me to add. Unfortunately, the administrative law judge in Georgia, Judge Michael Malihi, ignored the detailed analysis provided to him by the plaintiffs who challenged Obama's eligibility to appear on the Georgia presidential primary ballot this year and, instead, rested his decision allowing Obama's placement on the Georgia ballot based on the holding in Ankeny, which is not binding authority on U.S. constitutional law. Ironically, Judge Malihi stated that he would have entered a default judgment against Obama because his attorneys refused to answer or appear at the hearing challenging his eligibility but had no choice but to decide in his favor on the merits when the plaintiffs insisted upon providing him the facts and law, which he then ignored for convenience. How pathetic can you get? So as to Taitz Indiana eligibility challenge, Ankeny will serve as binding law. Her complaint will be summarily dismissed because the issue raised in it was already asked and answered in Ankeny. Until a real federal judge who respects the oath he or she took to uphold the U.S. Constitution decides to follow their oath, we are stuck with an interpretation of our constitution that was never intended by the framers who chose to require presidents to be natural born citizens. I think it is more likely that Obama will be re-elected and a dictatorship declared with a total suspension of our constitutional rights before the federal judiciary decides to do its job. By that point, it won't matter.