What Have We Come To?
This issue just won’t let go of me. I just went to attorney Donofrio’s “Natural Born Citizen” blog, to see what the SCOTUS had done regarding Cort Wrotnowski’s case today:
[UPDATE]: 11:26 AM – Dec. 12 2008 : Rumors of a decision denying Cort’s application are unequivocally false. A SCOTUS Spokesperson just told Cort Wrotnowski there has been no decision. She indicated there will be no decision until Monday. The conference is sealed, no clerks are allowed in.]
Interesting… most lawyers I have read were predicting the SCOTUS would perfunctorily bat it away. Even more interesting, was the post to which this was an update. Donofrio seems to have had enough of the MSM et al demonizing him as some hateful nutcase, and dismissing his Constitutional issue as frivolous. He unloaded, and were I a reporter or lawyer guilty of such, I would be compelled to hang my head in shame upon reading “NATURAL BORN CITIZENâ€: DEFINED BY 14TH AMENDMENT FRAMERS AND IN TREATISE RELIED ON BY SCALIA:
PREAMBLE
This week has been quite enlightening as to the blatantly obvious fact that our “Fourth Estate†press corps have been transmogrified into propaganda ponies polly wanna crackering whatever may be handed down to them from “The One Corporation – your source for everything…†(cue eery theme tune). They don’t report the news anymore. No. Now they tell you what they want the news to be. There’s a huge difference.
For the record, my law suit was brought to remove three candidates from the ballots – three candidates who have big Constitutional issues as to their eligibility.
At the time of his birth, Obama was a British/Kenyan citizen by descent of his father. Because I pointed out pesky international laws which governed his citizenship due to the fact that a father has every legal right in the world to have the laws of his nation apply to his son, I have been labeled a conspiracy freakoid of nature.
Never mind that I included demands for Panama [born] John McCain and the Nicaraguan born Roger Calero to also be removed from our ballots. No, they don’t want to talk about that do they – because it would blow the “he’s just another Obama hater†mantra clear out of play.
A citizen (me) raised the Constitutional issue of first impression as to the meaning of “natural born Citizen†in Article 2, Section 1, of the United States Constitution – that ultimate pesky legal document for those who would rather “be†the law instead of following it.
What are the Fourth Estate propagandists worried about? Thou doth protest too much. Me thinks so. Why? Because the law is against their man – it indicates Barack Obama is not a natural born Citizen of the United States. And most of the media pundits have basically agreed by default. I say this because when yelling and mocking the issue, their main argument is not that the law is on their side (they know it isn’t), but rather that the law shouldn’t be discussed at all.
He then clearly, convincingly, and, for a lawyer, succinctly lays out the legal justification for his assertion that Obama is not a “Natural Born” citizen. Please read it. One doesn’t have to be a lawyer to understand it, and frankly, any lawyer who could read it and continue to dismiss the issue as frivolous, is a rank partisan and no friend of our Constitution. Similarly, any reporter who could read it and dismiss the author as a hateful nutcase, is a rank partisan and no friend of the novel concept of unbiased reporting of the truth. Both are shameful and ought to feel ashamed… but the arrogant fools won’t. â—„Daveâ–º
I found your blog on MSN Search. Nice writing. I will check back to read more.
Eric Hundin
Thanks Eric, and welcome aboard. I look forward to further comments from you. â—„Daveâ–º
I’m a lawyer. I’m not a rank partisan (at least not in favor of Obama!). I’m a friend to the Constitution, and deal in practical ConLaw every day, protecting citizens from government overreach.
But I’m just not getting behind this. Clearly the Court didn’t either.
It’s annoying Donofrio won’t just post the text of his (or Cort’s) brief on his blog. If it’s well written, it would (like Heller) not be difficult for a layman to understand or follow. More than that, I’d LOVE to see the reply briefs – I’m often more convinced by an opposition that doesn’t ring correct than the original argument. But I’ll just take him at his blog post, with its inadequate legal cites.
Even accepting his definition of “natural born” to require that parents also be citizens, Obama was born on US soil to a parent who was a US citizen born in Kansas. His circumstances seem to meet both prongs here. Does his mother’s citizenship not matter at all?
Say she didn’t know who the father was (it was the 60s, after all). Would he now be eligible? Does he bear the burden of proof of finding a deadbeat dad? Should illegitimacy be a bar to holding the office of President? Even if it should, does the Constitution mandate that it is?
The Constitution (like all laws) must be read as it is, and not as some judge would like it to be. But within that narrow mandate, there is still legitimate room for disagreement as to exact definitions of phrases, and with that, different outcomes. Again, even accepting the given historical definitions as the only ones (and I am skeptical), this one turns on the issue of whether one parent is enough, or if you need to have both in the picture. The Senators who proposed and ratified the 14th Amendment certainly don’t seem to speak to it.
But even within that strict constructionist/originalist framework, there is danger in a reading of the Constitution that is so hypertechnical that it starts butting up against common sense. This comes close, as does the argument that the Founders meant to exclude a child of a military family born on a US military enclave.
If Obama is determined to be ineligible because his mother’s citizenship and American lineage isn’t enough (which I DON’T think is necessarily the correct legal conclusion), Americans will turn their backs on the Constitution as outmoded in whole – or at the very least will flock to people promising to elect judges who will “modern up” the whole thing. If there are two wholly legitimate legal outcomes, and this is one of those cases, policy considerations must necessarily be taken into consideration.
Thanks for the most cogent and non-partisan argument I have seen on this issue, Orrin. Actually, Donofro does have a link to Cort’s brief in the sidebar of his blog. It can be downloaded here. The “standing” issues probably will interest you as well; but Point Two, beginning on page 28 is what interests me. And, no, it is not difficult at all to understand or follow.
The questions you raise regarding whether a bastard of a promiscuous flower child could be President is a fascinating one. I’m guessing that our Founders would have been scandalized at the thought! 🙂 It is a moot point here, since it is averred that she was married to a British subject, and Obama’s own website asserts that he was a dual citizen until he was 21.
As to the military child issue, perhaps that is why this issue rings such a chord with me. I can still recall learning of the distinction between “Natural Born” and “Birthright” citizenship during a junior high school American history class; because we discussed how it rendered my younger sister, who was born in Munich during our occupation of Germany in 1947, ineligible to ever be President. Her situation was precisely that of John McCain, so Donofrio’s argument against his eligibility was hardly novel or a stretch; it used to be taught in public school.
I reckon it is a pity that modern generations of American children do not study our basic founding documents to the extent that we once did. It won’t be long now before we old timers, cursed with inconvenient memories of what this nation once was, die off and leave such matters in the hands of legal experts, who now regard our Constitution not as a binding contract, but as a malleable “living document.”
Your last paragraph is the most persuasive; as is the notion that the SCOTUS is between a rock and a hard place. They must consider the massive ghetto riots that would ensue if they ruled Obama ineligible. Alas, ducking the issue and failing to rule on it at this point, is just kicking the can down the road, and not doing Obama or the country any favors.
Nor, themselves… there are already at least 13 more cases working their way up to them, and I have read of military officers who will refuse to follow the “illegal” orders of a usurper, and file a suit where “standing” could not be denied. Meanwhile, I have read that there are those who intend to file suit against every “official” act he ever makes under the color of law; so this issue is not going away. Sooner or later they are going to have to rule on his eligibility, and the longer they delay, the more members of the public that will have become aware of the very real Constitutional questions involved.
Those who are displeased with him at the time, which will include all the Hillary supporter Democrats who are the ones who have driven this issue from the beginning and still are, will expect the court to uphold the original meaning of “Natural Born,” which I still think Donofrio has exactly right. Those who are still enamored with him, will prefer your more pragmatic “living document” approach. I suspect it could generate civil strife, whichever way they then rule.
For me, the Constitution is already dead; because the SCOTUS just whiffed at the opportunity to save it from pending crisis. If it is not the organic law of the land, modifiable only through the well defined Amendment process; but rather is only a malleable scaffold upon which the oligarchy hangs their onerous regulations, which is easily changed by executive order, legislative edict, or judicial fiat (or neglect); then it is meaningless as a contract between a free people and their public servants.
Alas, the time for the inevitable second American Revolution draws near. â—„Daveâ–º
Why the download? I’m lazy, damnit, and don’t want to register for a new site! Why couldn’t he just cut and past the thing into a blog post?
My approach to this is NOT a “living document” one. My final argument above (which is the least persuasive to me) is only that when proper legal analysis can still come to two different outcomes, then policy arguments should break the tie.
Justice Scalia hates using legislative history, and for good reason. The reason one legislator votes for a bill is not necessarily the reason another votes for it. (This is different than the historical discussion in DC v. Heller, which sought to define what no 18th Century contemporary had ever explicitly explained, because everyone thought the 2nd Amendment’s reference to an individual right was self evident.)
The fact that the so-called “father of the 14th Amendment” felt compelled to try to explain what he meant by his language means that the term “Natural Born Citizen” was NOT universally understood at the time of the adoption of the 14th Amendment. When the people who voted on legislation had or could have had different understandings, Originalism must take a back seat to a strict grammatical construction, as there was no certain “original understanding.”
Additionally, a set of statutes or a Constitution must be read as a whole. The 14th Amendment’s change in the American definition of citizenship, along with the use of the word “born,” cannot be read so apart from the Presidential qualification clauses.
But even if it’s NOT modified, the question still remains – what about his mother? Obama might be stupid enough to put on his website that he was a “dual citizen”, but legally the US has never recognized such a thing. There may have been an assumption historically that both parents would share citizenship, but there seems to be no discussion on it. Again, then, the analysis must be limited to the language of the law itself, which says NOTHING about a legitimacy requirement.
Legally, the blog post you originally linked to is profoundly unpersuasive. I think that Thomas and/or Scalia wanted to tackle the subject head on and put it to rest, while the others whimped out, still smarting from the accusations of pure politics after Bush v. Gore.
But buck up before you pick up a rifle. We’ve been through worse before.
Bitch, bitch, bitch… I suspect he was proud of it and wanted everyone to have their very own copy… for posterity if not vanity. There is no need to register on the download site. I did have to temporarily enable Java for it in NoScript to see the Download button, but it was there.
Another excellent comment, Orrin. Thanks for your reasoned perspective. I remain convinced that Obama is Constitutionally ineligible for the office; but there isn’t anything the citizenry can do about it. Nothing would surprise me more than for the court to actually rule against him; it just ain’t going to happen.
Don’t worry, I am too old, and increasingly apathetic, to involve myself with starting a revolution; but I won’t be surprised when it comes, and will be prepared to be a Patriot, as best I can. â—„Daveâ–º