CRUZ for PRESIDENT CAMPAIGN COPIES OBAMA’S BIRTH CERTIFICATE GAMBIT and CARLY FIORINA HITS a HOME RUN

© 2016 jbjd

CORRECTED and UPDATED (IMPORTANT) 01.10.12

Please don’t be misdirected into believing that U.S. Senator (R-TX) Ted Cruz’ latest ‘birth certificate’ shenanigans have put his eligibility matter to rest.

It is Friday, January 8, 2016. Over-sized headlines on Drudge proclaim in huge letters that Presidential candidate Ted Cruz has produced his mother’s birth certificate showing she was born in the U.S.A., implying this alone establishes his Constitutional eligibility to be President (as a natural born citizen). But trust me; thus far he has failed to provide documentary evidence that supports a rational legal conclusion he is even a U.S. citizen, let alone natural born. It’s true. It’s all here.

First, a brief legal primer on determining U.S. citizenship at birth, for a child born in Canada.

The status of U.S. citizenship is determined by examining the U.S. Code in effect at the time of birth. Cruz was born in 1970, in Canada. Does that make him a U.S. citizen? The applicable U.S. Code says,

U.S. citizenship to a child born in Canada [in 1970] whose father [admittedly] is not a U.S. citizen is conditioned on both 1) the U.S. citizenship of the mother; and 2) her having lived in the U.S. for five (5) 10 (ten) years, two (2) five (5) of which must have occurred past the age of 14. (8 U.S.C. 1401, Act 301 (g)) June 27, 1952, ch. 477, title III, ch. 1, § 301, 66 Stat. 235)

Thus, at a minimum; an application of facts to law that will determine whether Cruz is a U.S. citizen would require at least two additional documents: his birth certificate, and the birth certificate of his mother. And as this Salon article written by Steven Lubet, the Williams Memorial Professor of Law at Northwestern University demonstrates; the fact that determining his citizenship would require both birth certificates has been public knowledge since at least as far back as 2013, the year Senator Cruz took office.

Ted Cruz’s origins continue to haunt him

[subtitle omitted by jbjd]

by Steven Lubett

…

In order to fulfill his promise to the voters, Cruz must therefore submit proof that he is a U.S. citizen, which will be trickier for him than for most people. Cruz has thus far released only his Canadian birth certificate, which confirms that he was born in Calgary, Alberta, in 1970, and additionally states that his mother was born in Wilmington, Dela. The second part is crucial – Cruz’s only claim to U.S. citizenship through his mother – but it is also hearsay. The birth certificate is primary evidence of Cruz’s own birth, but the entry about his mother merely records her assertion to the Alberta Division of Vital Statistics. Even though I don’t personally dispute what he says, “My mother said so” is not what is usually meant by “proof.”

How, then, can Ted Cruz prove his U.S. citizenship to the satisfaction of the Canadian authorities? He could submit his passport, or perhaps the document called a Consular Certificate of Birth Abroad (if his parents obtained one), but those would have the same hearsay problems as his birth certificate. The only sure-fire evidence, therefore, would be his mother’s birth certificate, presumably issued when she was born in Delaware.

http://www.salon.com/2013/09/20/ted_cruzs_origins_continue_to_haunt_him/

In an article entitled “Dual citizenship may pose problem if Ted Cruz seeks presidency,” The Dallas Morning News reported in August 2013, “For the first time, Cruz released his birth certificate Friday in response to inquiries from The Dallas Morning News.” An image of the document appeared on the site. Information had been filled in on what looks like an official government form captioned: “Division of Vital Statistics, Department of Health Edmonton, Certificate of Birth.” Id. On the line for mother’s birthplace, someone had typed “Wilmington, Delaware, U.S.A.” Id.

At this same time, Cruz did not release the other document we have established is vital to his U.S. citizenship validation, which is the U.S. birth certificate for his mother.

(Please click on that link above to The Dallas Morning News from August 2013; and keep in mind, we’re talking about events which occurred three years ago. Then, scroll down the page till you reach the embedded Daily Caller video entitled “Trump plays birther card on Ted Cruz”; it shows a clip from of ABC’s “This Week” with George Stephanopoulos broadcast in August 2013, featuring a segment with Jon Carl on the ground at the Iowa State Fair. Play that whole video. It opens with Stephanopoulos:  “Every August the Iowa State Fair features pork tenderloins, deep-fried Twinkies, a whole bunch of ambitious politicians with the White House in their sights. Forget that it’s three years before the next election, it’s never too early, Presidential hopefuls are out in force across the Hawkeye state this week-end.” Then, it cuts to Carl, at the Iowa State Fair. “We even ran into Donald Trump out here… he says that he might run.” What follows is Carl’s exchange with Trump. Carl asks for Trump’s “assessment of the field,” and goes down the names. “Ted Cruz.” Trump loves his opposition to Obamacare. Then, Carl asks about “Trump,” citing his history of questioning Obama’s birth certificate. This leads to a question from Carl about Cruz’ eligibility, pointing out, Cruz was born in Canada, but his mother was an America citizen. Trump’s abbreviated response: “Look, that will be ironed out…”)

Three years later, Presidential candidate Trump raises the specter his fellow candidate, Cruz, might have a problem with Constitutional eligibility. Days later, on January 8, 2016, in the article linked on Drudge‘s headline, Breitbart announced, “The Cruz for President campaign provided Breitbart News exclusively with the birth certificate.” The ‘birth certificate’ they were talking about is for Cruz’ mother; an image of what purports to be that document appeared on the site. Information had been filled in on what looks like an official government form captioned: “State of Delaware, Standard Certificate of Birth.” Id. On the line for mother’s birthplace, someone had written “Wilmington, Delaware.” Id.  For whatever reason, Breitbart provided readers with no explanation as to how the Cruz campaign transmitted this ‘document’ to them. The source code for the image  displayed in the article contains only a Breitbart electronic trail; it is posted on the Breitbart Scribd page, with no visible attribution to the Cruz campaign. 

In no particular order of import; here are just a few of the material facts which trouble me about this ‘Ted-Cruz’-mother’s-U.S.-birth-certificate-presentation’ and have aided my analysis that this is part of a broader well-orchestrated dog-and-pony show. (I am sure I will write additional columns on this issue, as time (and paid employment) allow.)

PROBLEM #1: Under the U.S. Code, any mock-ups like this coming not from the U.S. Senator, or from “Mr.” Cruz, but out of the Cruz for President campaign only constitute paid political advertising. Further, these materials must be identifiable to the viewer as sponsored by the campaign.

(I have written extensively about the difference between legally cognizable identification documentation, and a paid political advertising campaign. See, for example, DE-CODER RINGS (1 of 2) and WHY PRESIDENT OBAMA WAITED until APRIL 27, 2011 to RELEASE a FACSIMILE of his LONG FORM BIRTH CERTIFICATE.)

PROBLEM #2: This 2016 exclusive presentation on Breitbart marks the first time an image of the birth certificate of Cruz’ mother has become available for public display, notwithstanding as explained above; since he was born in Canada 1) her birth certificate is required to establish whether he is a U.S. citizen; and 2) questions as to his U.S. citizenship have dogged him since at least as far back as 2013. But even with the crescendo of eligibility speculation beginning at least as far back as then; as we said, the only evidence he produced to establish his U.S. citizenship was his birth certificate. And that was it for the next three years. Then, in February 2015, with his run for the Presidency all but guaranteed; The Dallas Morning News reported that rumors of ineligibility resurfaced. Now, with the stakes for establishing his eligibility raised considerably; you might think a smart lawyer like Cruz would produce his mother’s U.S. birth certificate as evidence he was legit. Well, you would be wrong. Because all he coughed up that same birth certificate for baby boy Cruz he had offered up to the same newspaper three years earlier! Id.

PROBLEM #3: Under both the U.S. Code and recent holdings of the U.S. Supreme Court protecting false political speech; unless intended for an unlawful purpose like defrauding the government; pretending to a media outlet that a facsimile of an ‘identification document’ like the image of a birth certificate (or of a form of renunciation of Canadian citizenship) is real, does not violate the law, precisely because as a matter of law, it identifies nothing.  Think about it this way. Let’s say, you are applying for a civilian job and, in order to verify your educational background, your prospective employer asks you to provide an “official” school transcript. You wouldn’t go to your school; have them copy your records and hand them over to you; and then deliver these to the employer. No; that’s not “official.” Because you could have tampered with the information in your possession and under your control. Rather, you would likely ask your school, in writing, to mail these records to that employer, on your behalf. (You might also satisfy the request to provide an official transcript by having the record holder place the documents into an envelope and ‘sealing’ the flap with embossing, which you can then hand to the company.)

How might ‘inquiring minds’ similarly obtain official identification documentation with respect to Cruz’ U.S. citizenship status? Well, they might try obtaining the relevant information from Canadian officials. Indeed, the The Dallas Morning News said they tried to obtain such ‘official’ verification of Cruz’ U.S. citizenship status way back in August 2013, in the same report in which they posted the image Cruz provided, of his Canadian birth certificate with his mother’s birthplace filled in as U.S.A.

Officials at Citizenship and Immigration Canada said that without a signed privacy waiver from Cruz, they cannot discuss his case. Id.

And, today, three years later, Breitbart News echoed the Dallas News’ frustration at being unable to access Cruz’ identifying information:

Canadian immigration authorities could not provide Breitbart News with additional documents, citing Canadian privacy laws.  Id.

So, for three years and counting; why hasn’t Cruz provided either of these media outlets with the necessary waiver authorization so that they could directly obtain his official identification documentation?

PROBLEM #4: Despite the fact spelled out in PROBLEM #1 that this maternal ‘birth certificate’ displayed on Breitbart has no legal bearing on Cruz’ U.S. citizenship status inasmuch as it was issued by his Presidential campaign; the timing of the campaign’s release is nonetheless way off. Coincidentally, Presidential Candidate Carly Fiorina hinted just the other day she found a ‘timing’ dilemma in another aspect of Cruz’ citizenship brouhaha, which tends to bolster my present ‘Breitbart timing’ observation.

Interviewed on January 7, 2016 by FOX’s Greta Van Susteren, Ms. Fiorina was asked to comment on what Susteren characterized as Cruz’ eligibility dispute,  begun by Trump and joined publicly just that day by Sen. McCain, who agreed there was some legitimacy to the issue because Cruz was born in Alberta, Canada “to an American mother and a Cuban father.” She asked where Fiorina stood on this “discussion.” Fiorina replied, “Well, I don’t know all  the particulars but I would say this. I find it odd that Senator Ted Cruz did not renounce his dual Canadian citizenship until 2014, when it became clear he was running for President.” Van Susteren asked, “Meaning what, meaning that he wanted to be a Canadian until 2014, is that what that means?” The candidate clarified, “I don’t know; I think  you oughta ask him.” http://gretawire.foxnewsinsider.com/video/video-fiorina-questions-why-ted-cruz-took-so-long-to-renounce-his-dual-canadian-citizenship/

I have a theory on the answer to Ms. Fiorina’s question.

Here is the full title of the article by Professor Lubett, published by Salon in September 2013, including the sub-heading I omitted above, followed by the ‘money’ excerpt from that article: (all emphasis added by jbjd)

Ted Cruz’s origins continue to haunt him

What’s really keeping Ted Cruz from finally renouncing his Canadian citizenship? An expert investigates

…

What is keeping Ted Cruz from finally renouncing his Canadian citizenship?

Perhaps Cruz simply hasn’t gotten around to it. In fairness, the Canadian government requires more than a simple shout-out before canceling somebody’s citizenship. The aspiring ex-Canadian has to pay a fee of $100 and submit an official “Application to Renounce Canadian Citizenship,” which could be a bother for someone with a busy schedule of Tea Party meetings and lectures for the Heritage Foundation. On the other hand, the renunciation form is pretty simple. There are only 12 questions on the application, and most of them request basic information such as name, address and date of birth, all of which could be handled by a staffer.

There is one section, however, that could cause Cruz some trouble, and perhaps that is the reason for his delay. Question 5 instructs the applicant to “attach proof” that he is (or will become) a citizen of a country other than Canada. That may seem like it is none of Canada’s business, but in fact the requirement follows from important principles of international law – including the International Covenant on Civil and Political Rights – which call upon governments to protect individuals from becoming stateless. Of course, Canada’s requirement of proof was not established with U.S. senators in mind, but it does reflect an admirable intention to ensure that all individuals have national rights in at least one country. And in any event, it is up to Canada to decide how and in what manner its citizenship may be annulled – the U.S. has similar rules – and Cruz has no choice but to follow the necessary protocol.

…

Id.

Recall that the The Dallas Morning News reported in August 2013; problems were surfacing related to Cruz’ dual citizenship. Id.

The circumstances of Cruz’s birth have fueled a simmering debate over his eligibility to run for president. Knowingly or not, dual citizenship is an apparent if inconvenient truth for the tea party firebrand, who shows every sign he’s angling for the White House….Two visits in recent weeks to Iowa, the first state to winnow the field of presidential candidates, set off a fresh flurry of commentary on the issue. He heads to New Hampshire, another early voting state, on Friday — another strong sign that he’s eyeing a 2016 run.

The Morning News article went on to say that Cruz announced he would resolve the problem immediately by having his team of lawyers research how to “renounce” his Canadian citizenship. Id. And, inasmuch as Professor Lubett’s article in Salon pointed out, renouncing his Canadian citizenship required proving he had citizenship elsewhere, presumably in the U.S.; he would have to establish at this point, his mother was an American citizen. In short, he would need to produce his mother’s birth certificate before officials in Canada could process his Canadian citizenship renunciation. (Lubett also pointed out; Cruz could have used a U.S. passport, which is issued by the State Dept., to prove he is a citizen of the U.S. However, in order to obtain a U.S. passport, one must present evidence of being a U.S. citizen. And, inasmuch as Cruz’ birth certificate evidences he was born in Canada; he could not prove to our State Dept. he had inherited U.S. citizenship through his mother, without producing her birth certificate, anyway.)

The Dallas Morning News reported nine months later. in May 2014, that the process to terminate Cruz’ Canadian citizenship had been finalized; they posted the copy Cruz gave them of what he said was the official letter. (Actually, it wasn’t a letter at all but a form captioned, “Certificate of Renunciation of Canadian Citizenship.” Id.)

This means, the birth certificate for Cruz’ mother was in his possession at the latest, before the date on that letter-cum-Certification of Renunciation.

In sum; before Cruz could obtain the Canada letter-cum-Certification of Renunciation he provided to The Dallas Morning News in May 2014, he must have had possession of his mother’s birth certificate, and it must have shown, she was a citizen of the U.S.A.

So, here’s the problem associated with the relationship between the timing Ms. Fiorina pointed to in her interview with Greta, of Cruz’ alleged renunciation of Canadian citizenship in [May] 2014; and his campaign’s distribution to Breitbart the mock-up of his mother’s birth certificate two years later, in January 2016. Questions as to his status as a U.S. citizen centered on more than his dual-citizenship. This meant that just renouncing his Canadian citizenship in May 2014 only solved some of those pending Constitutional eligibility problems. The other questions related to his eligibility status centered mostly on whether he was born a U.S. citizen, which determination you now know could have been all but resolved as soon as he produced the birth certificate for his mother. And, based on the date that appears on the Canada letter-cum-Certification of Renunciation provided to The Dallas Morning News; we know he held that document by May 2014.

Then, why hasn’t he made that birth certificate available to The Dallas Morning News, or Breitbart, or any other media outlet, between May 2014 and now?

PROBLEM #5: The AP reported in August 2013 that Ted Cruz said he got his U.S. passport when he was in high school.

IMPORTANT UPDATE 01.10.15

Today, RCP posted an interview by CNN’s Jake Tapper, on Ted Cruz’ campaign bus. Tapper asked Carly’s question about the timing of Cruz’ renunciation. Let me explain how that has opened up the proverbial can of worms.

The important exchange is 01:10-3:20.

So, what’s so bad about that? I’ll tell you.

Ted Cruz is a smart and politically ambitious man. Here’s the Cruz bio that appears on the Congressional site: graduated Princeton University, B.A., 1992; graduated Harvard University, J.D., 1995; Law Clerk to Chief Justice of the United States William Rehnquist; Associate Deputy Attorney General, U.S. Department of Justice; Director of the Office of Policy Planning, Federal Trade Commission; Solicitor General of Texas 2003-2008; lawyer; elected to U.S. Senate 2012. http://bioguide.congress.gov/scripts/biodisplay.pl?index=C001098 And as I pointed out earlier; The Dallas Morning News raised Cruz’ dual citizenship status during the 2013 Iowa State Fair, where the R Presidential nominee wannabes, including Ted Cruz and Donald Trump, had ‘launched’ their campaigns.

There is no way in hell that this man hadn’t fully researched his U.S. citizenship pedigree long before August 13, when The Dallas Morning News pointed out to him, he was likely still a Canadian. Id.

But I noticed something else that stinks about this eligibility play.

On January 7, Heidi Cruz – she’s Managing Director at Goldman Sachs – was interviewed on Boston Herald Radio. Here’s what she said about the eligibility issue (10:00-11:10):

Ted is indisputably a U.S. citizen. He is a natural-born citizen. … He fits that definition without a question.

(Note in that segment, Heidi did not say, Ted is a U.S. citizen ‘because his mother is a citizen.’ However, she does mention maternity in reminding the host that Mitt Romney’s father George – he ran for the R Presidential nomination against Nixon in ’68 – was also a citizen, “born in Mexico, but to a mother who was a U.S. citizen.”)

Now, watch her husband’s January 7 responses to questions about eligibility from Mark Halperin of Bloomberg Politics. (I cannot embed this; but watch from 00:50-02:00):

http://player.ooyala.com/iframe.js#pbid=b171980b65ae4996bffea4da902c7846&ec=JqNGYyMDE6LHW3JgZ6JCYoGU3NddPVyF

The very first Congress, in defining a natural born citizen said, the child of a U.S. citizen is a natural born citizen.

(Note that just as soon as Cruz ended that sentence he was off on another tangent, no pause, no breath. He did not interject, ‘therefore, I am a natural born citizen because my mother is a U.S. citizen’ (or leave any room for Halperin to ask that next logical question.)

And, in today’s video, with Jake Tapper; Cruz began by repeating the party line about his U.S. citizenship, sort of:

The Constitution and federal law are clear. The child of a U.S. citizen born abroad is a natural born citizen.

However, Tapper kept on the subject as the exchange continued, asking whether his parents ever voted in Canada, clearly referencing the fact, voting records indicate she was on such a list, meaning, she would have had Canadian citizenship at the time. Cruz answered:

My mother didn’t, because she was a U.S. citizen, and my mother, look, the internet has all sorts of fevered swamp theories…

So, for the first time during any of these interviews, he now claims, “my mother was a U.S. citizen,” apparently in order to quell Tapper’s voting list reference. But notice, he begins another revelation, “and my mother…” and then stops himself, quickly pivoting to something else. But Tapper keeps going until he brought up Carly’s question. Now, listen to what Cruz said right after that:

Look, my mom was born in Wilmington, DE, was an American citizen by birth, she’s been an American citizen all 81 years of her life…

Question: What happened between January 7, when Mr. & Mrs. Cruz would only answer questions from the press as to the candidate’s eligibility, with vague generalities about the law; and January 10, when the candidate specifically alleged, ‘My mother was born in Delaware, USA’?

Answer: Breitbart posted the campaign’s mock-up of Cruz’ mother’s birth certificate on January 8 and Jake Tapper asked why Carly Fiorina thought it ‘odd” that he renunciated his Canadian citizenship in 2014.

As I said, Carly Fiorina hit a home run by positing that question…

***************************************************************************************************************************************************************

My mind is a terrible thing to waste.

TRUMP to LEMMINGS: DO NOT LOOK BEFORE you LEAP!

©2012 jbjd

Today, in a calculated display of hubris rivaled only by a production spawned from President Obama’s re-election campaign, Donald Trump has unveiled his much touted October “bombshell“: a “deal” to entice Mr. Obama to produce both his college and passport applications and records. Trump promises that jumping through this hoop “by October 31,” and “to my satisfaction,” and “if it’s complete,” will yield a check for $5,000,000 to Obama’s designated ‘charity.’ (I put the word ‘charity’ in single quotes because in addition to listing a well known outfit like “American Cancer Society”; he lists not only the umbrella enterprise of “AIDS research”; but also the generalized category “inner city children in Chicago.”) He couches his request in terms of acting on behalf of the people, to end their “questions” and “anger.” Yes, he knows that the President will be doing a “great service for the country” by allowing them to “know something about their President.” In short, by releasing the documents Trump mentioned, the President suddenly will “become transparent.”

Of course, some of us know, no “thing” coming out of this dog-and-pony show will inform anyone where Barack Obama was born.

For starters, notice that Trump qualified his reference to Obama’s “long-form birth certificate” by adding (after an obvious pause) “or whatever it may be.” It’s the “whatever it may be” which should have been the tip-off, Trump is wearing his circus barker hat. Why do you suppose he is ‘hedging his bets’ as to the ‘document’s’ authenticity?

As I explained in SHE SAID / HE SAID: SCRIPTING the 04.27.11 LAUNCH of PRESIDENT OBAMA’S LONG FORM BIRTH CERTIFICATE back on April 1, 2012 (and other articles linked therein), what was released on April 27 was the political ad campaign conceived, executed, and launched by the President’s re-election campaign, the contents of which were fully protected by the 1st Amendment’s prohibition on restrictions on political speech. Featuring the image of the mock-up of a long-form birth certificate, the ads ran on internet sites such as WhiteHouse.gov/blog. (Emphasis added.)

Do you suppose that Mr. Trump, in April 2011 still a possible contender for the Presidency; doesn’t recognize a political ad campaign when he sees one?

Trump asserts he forced the President’s April 27 release of this advertising image: “I’m very honored to have gotten him to release his long-form birth certificate…” Presumably, he means, in a desperate attempt to quell doubts as to the President’s birth status which have swirled unabated for more than 3 years, since the primary in 2008; it was his – Trump’s – many references to concerns as to whether Mr. Obama is a natural born citizen, uttered as a (pseudo) Presidential candidate in the spring of 2011 which compelled the release of the document at this particular time. (Again, crediting the release of the certificate – “or whatever it may be” – to the President, as opposed to correctly attributing the release to the President’s re-election campaign, cannot have been an innocent oversight.) But, of course, Trump had no more to do with either the substance or the timing of the April 27 appearance of the long form image; than any of the other millions of Americans challenging the narrative of Obama’s birth and demanding some sort of documentation. In fact, its release was triggered by the formal announcement of the President’s re-election campaign 3 weeks earlier, on April 4, and the accompanying mandatory filing with the FEC which then allowed the solicitation of funds in his name by the newly formed re-election campaign, funds which the campaign immediately translated into expenditures on political advertising such as the long-form ad. In other words, it was the official (read, legal) kick-off of the President’s re-election campaign which provided the first opportunity to address what were ongoing eligibility issues that could jeopardize his re-election. (The formal kick-off of the President’s campaign was also accompanied by previously scheduled events associated with the re-election campaign, including a stint on Oprah and a major NY fundraiser, also on the 27th. Id.)

SHE SAID / HE SAID contains not only a lucid (albeit lengthy) explanation of the long-form image as a campaign expenditure; but also references several other articles on the “jbjd” blog, dispelling the long-form myth, including  HOW to WRITE SMART CANDIDATE ELIGIBILITY LAWS in your STATE (and make applying to get on the ballot harder than applying to get into Harvard), which points to the lethal problems associated with allowing candidate ‘self-authentication.’ Indeed, did you notice that Trump’s deal for Obama’s records never specifies who must transmit these records, or to whom these records must be submitted? And while he says, the documents must be “complete” and to his “satisfaction”; he never specifies, who will determine whether these criteria are met. Because he knows better.

For example, during the recent Presidential debates; Obama verified the authenticity of some of his ‘facts’ by citing their source was “reporters.” What if these same “reporters” verify any forthcoming records? (See Pooh-poohing Pulitzer) And recall that Annenberg Political Fact Check staffers with no expertise in document authentication confirmed, the mock-up of the President’s Certification of Live Birth, and accompanying ad copy, were real. (See RUMORS, LIES, AND UNSUBSTANTIATED ‘FACTS’) Assuming she is being sincere in this heated exchange with John Sununu from the Romney campaign; Reporter Soledad O’Brien is only one of millions of Americans who still wrongly believe, what APFC says must be true.

UPDATE 09.17.15: The original video is no longer available. In its stead, here is a link to a page explaining what happened between Ms. Soledad and Mr. Sununu on CNN; and points to the recent metamorphosis to the ‘factcheck’ URL. http://www.tcunation.com/profiles/blogs/soledad-o-brien-political-hack-constantly-getting-caught-in-the

In sum, Donald Trump knows better than to contend that any ‘documents’ forthcoming through this publicity stunt will increase the knowledge of the American people about the circumstances of our President’s birth; or diminish our ire at what many of us feel is a con. On the contrary; by failing to take advantage of media opportunities like this, to educate the public that, legally, the April 11, 2011 long-form release by the Obama re-election campaign was only part of a political ad launch; and worse, by cynically encouraging the Obama campaign this opportunity to repeat that ploy; Trump only broadens the con, and exacerbates our ire.

Obviously, Mr. Trump thinks most Americans are as foolish as does President Obama.

THE 2012 TEXAS BALLOT CHALLENGE

© 2012 jbjd and kjcanon

Given current election laws; the only way to keep an ineligible candidate out of the White House is to keep the candidate’s name off the ballot, in a state that only allows to be printed on the ballot the names of candidates federally qualified for the job. But what happens when election officials in a ballot eligibility state – like Texas – are determined to ignore those laws? Then, the only way preserve the integrity of the ballot; is to take those officials to court.

View this document on Scribd

…………………………………………………………………………………………………………………………………………………………….

Please, contribute to THE 2012 TEXAS BALLOT CHALLENGE challenge.

WHY PRESIDENT OBAMA WAITED until APRIL 27, 2011 to RELEASE a FACSIMILE of his LONG FORM BIRTH CERTIFICATE

© 2012 jbjd

For my next few articles, I will focus on the elusive nature of paid political advertising campaigns. First, a riddle.

Why did President Obama wait until April 27, 2011 to release a facsimile of his long form birth certificate indicating he was born in Hawaii?

As you will see, the answer to each of these questions – why release and why release now – depends on whom you ask.

On April 27, 2011 Ben Smith at Politico posts this rationale he claims was emailed to him by a White House official (although, for some reason, Mr. Smith produces neither the name of the sender of the purported email nor an image of the email which was purportedly sent), answering both questions:

The day was chosen by when they provided it to us, it got here last night, so our belief was we had to do it today. Petraues et al is tomorrow’s announcement

I am not going to argue the politics of doing this are good — they probably aren’t. Allowing the GOP primary to devolve into birther mania probably would be better, but the president felt strongly that this was bad for the country

Why today?

That same day, John McCormack at the Weekly Standard, referencing Smith’s post, adds the following analysis:

Team Obama thought the “birther issue” was politically advantageous for them. By refusing to release the document, they gave the conspiracy theory just enough oxygen to keep it alive and make Republicans look crazy when asked about it by their constituents (obviously, the most die-hard “birthers” will summarily call the “long-form” certificate a forgery or find other excuses to keep their fevered dreams alive).

Why Did Obama Wait Until Today to Release His Long-Form Birth Certificate?

Huffington Post’s Sam Stein reported at 10:13 AM (ET) on the details of the birth certificate launch, but did not speculate as to the answer to either question:

The move came as a surprise to the press corps, many of whom had not shown up for Wednesday’s early-morning White House briefing. By the time word had spread that Obama would be making a 9:45 a.m. statement on the matter, however, the top anchors at all the networks had scurried into the briefing room.

…

Last Friday, the president himself wrote Loretta J. Fuddy, the director of health at the State of Hawaii, requesting “two certified copies of my original certificate of live birth.” Fuddy complied. Shortly thereafter, the president’s counsel, Judith Corley of the firm Perkins Coie, flew to Hawaii to pick up two copies of the form. The trip was not taxpayer funded but, rather, paid out of the president’s personal account. Corley returned on Tuesday at roughly 4 p.m. with the copies. The White House announced a “morning gaggle” for reporters shortly thereafter. One aide explained that they did not want to “hold” on to the documents for release on a later date.

Many members of the press confessed to being “stunned” as it became clear what was about to be discussed. White House press assistants handed out a six-page stapled packet of photocopies showing the new and old birth certificates as well as the White House’s legal correspondence with Hawaii’s Department of Health.

…

Obama Birth Certificate Released By White House (PHOTO)

Michael A. Memoli authored more than 1 article for the LA Times on that day. Here’s the one that, being more in line with the underlying theme of this (series of) article(s), most interested me:

Reporting from Washington — The White House released President Obama’s long-form birth certificate to reporters on Wednesday, an extraordinary step in reaction to renewed questions from critics about whether he was born in Hawaii.

The document also was posted on the White House website. President Obama is expected to speak on the subject from the White House briefing room later Wednesday morning. (Here, Memoli clearly indicates that, being a reporter, he received a copy of the President’s long form birth certificate and posted this article before the President spoke. But Sam Stein at HuffPo makes clear in the article he posted immediately after the President’s briefing room launch, that “top anchors at all the networks [who] had scurried into the briefing room” received both the President’s spin and the document he spun, contemporaneously. And that “members of the press [in the briefing room] confessed to being “stunned” as it became clear what was about to be discussed.”)

Amid questions during Obama’s 2008 run for the White House, his campaign released a certificate of live birth to verify he was a native-born citizen, a constitutional requirement of the office. (No; the Constitutional requirement is “natural born citizen”; and he released a “Certification,” not a certificate. It said so right on the mock-up.) So-called “birther” critics called the document insufficient, however, and conspiracy theories about the president’s birth have continued.

Administration officials said they felt compelled to release additional documentation because the continued “distraction” was harmful for the country.

“It may have been good politics and good TV, but it was bad for the American people and distracting from the many challenges we face as a country,” Dan Pfeiffer, White House communications director, wrote on the White House’s blog.

To receive the long-form document, the president personally sent a request to the Hawaii Department of Health. White House counsel Robert F. Bauer traveled to the state to retrieve it. (According to the blog, Attorney Judith Corley of Perkins Coie, traveled to HI for that purpose.)

The state of Hawaii has faced a regular barrage of requests for information about Obama’s birth, but privacy rules barred them from releasing the full birth certificate. The White House said the state granted this exception “in part because of the tremendous volume of requests they had been getting.”

The release comes on the same day that real estate mogul Donald Trump, who has put questions about Obama’s birthplace front and center in recent weeks, travels to New Hampshire as he considers a presidential campaign of his own. (More importantly, this release coincides with the President’s previously scheduled taping of the Oprah Winfrey Show, in Chicago, immediately after this press conference. Obamas Visit Oprah in Chicago Wednesday)

White House releases long-form Obama birth certificate

So, what is my answer to the riddle, why did President Obama wait until April 27, 2011 to release a facsimile of his long form birth certificate? Because both the purported request to HI officials for his long form birth certificate; and the release of that facsimile of his long form birth certificate were part of his 2012 political campaign. (That’s why Stein’s article included the disclaimer, “The trip [to HI to ‘retrieve’ those documents] was not taxpayer funded but, rather, paid out of the president’s personal account.”) And even though questions still “swirled” since he was inaugurated in 2009, that he was Constitutionally ineligible to be President; he couldn’t launch another paid political advertising campaign to counter those concerns until he was actually in another political campaign; and he only launched his 2012 re-election campaign on April 4.

And he launched the paid political ad on April 27 to coincide with his appearances on Oprah and at several high end fundraisers in NY.  http://www.huffingtonpost.com/2011/04/27/oprah-winfrey-show-obamas_n_854232.html

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Freedom costs.

PHYSICIAN, HEAL THYSELF

©2012 jbjd

On December 21, 2011, the Kansas State Board of Healing Arts (“KSBHA”) upheld the decision it had first entered on November 21, 2011 (after a hearing 1 month earlier) to refuse to grant the application for a license to practice “osteopathic medicine and surgery” in the State of Kansas, submitted by Terrence Lee Lakin, the (former) Lieutenant Colonel who disobeyed orders to deploy to Afghanistan back in 2010.

According to this article on KCTV5 and the included video, Mr. Lakin currently holds licenses to practice in both MD and CO but had applied to obtain the KS license because he had hoped to move to that state to join his brother’s medical practice.

Now, I hope everyone leaves Mr. Lakin alone so that he can get on with the task which is likely to take longer than the rest of his life: recovering from his self-inflicted wounds.

DISCLAIMER: As far as I can tell; a recording of that October hearing cannot be directly accessed through the KSBHA web site. However, I ‘found’ what appears to be an audio recording of that hearing through a link on the Terry Lakin Action Fund website linked to a ‘news’ report containing a link to an audio of the hearing. (Interestingly, that first link on Lakin’s site appeared immediately below a link to a radio show called “Officer’s Oath” broadcast on Terry Lakin Action Fund Radio. This episode featured right wing luminary Carl Swennson (who spells his name with 2 n’s) to discuss “the continnuing question in Georgia of Eligibility…”) (What I could not find anywhere on this site was a link to documents or audio recordings related to his military court martial and conviction for violating the Uniform Code of Military Justice. But those documents can be accessed through links I provided above.)

Anyway, I cannot guarantee the provenance of the recording since I did not obtain this from the KSBHA web site. 19663LakinTerrenceO21Tra…udio.zip

I also found a transcript of the October hearing although, again, this was not through the KSBHA web site and so, again, I cannot vouch for its authenticity. http://ftpcontent.worldnow.com/kctv//Lakin%20Transcript.pdf

The background to the tragedy which befell Lakin is simple enough, and has been broadly addressed. For example, I wrote about Lakin’s travails in HEROES and VILLAINS; and several others in the blogosphere have more than covered any aspects I might have missed. (The entire saga can be (roughly) pieced together from just the titles of the excellent links provided by the blog Oh, for Goodness Sake, arranged here chronologically. And NIMJ Blog-CAA FLOG is an absolutely fabulous site for all things military; a search of “Terry Lakin” yields hours of relevant material.)

Basically, based on political beliefs; the physician and soldier refused an order of military deployment to minister to troops in Afghanistan. He faced a court martial; was convicted, sentenced to 6 months’ imprisonment; and dishonorably discharged from the service. In the words of the KSBHA, his conduct evidenced “a disregard for his professional duties” which “undermines the integrity of the medical profession”; and “potentially jeopardized the health, safety and welfare of the military troops for which [he] was employed to provide medical care.” Id.

Obviously, Lakin disagreed with this interpretation, which is why he asked for reconsideration of the Board’s initial decision, in the first place.

But under the licensing rules in KS, conviction of a felony or a class A misdemeanor means, no medical license; unless the applicant can persuade the Board, he has been “rehabilitated.” (All emphasis is mine.)

(c) The licensee has been convicted of a felony or class A misdemeanor, whether or not related to the practice of the healing arts. The board shall revoke a licensee’s license following conviction of a felony occurring after July 1, 2000, unless a 2/3 majority of the board members present and voting determine by clear and convincing evidence that such licensee will not pose a threat to the public in such person’s capacity as a licensee and that such person has been sufficiently rehabilitated to warrant the public trust. In the case of a person who has been convicted of a felony and who applies for an original license or to reinstate a canceled license, the application for a license shall be denied unless a 2/3 majority of the board members present and voting on such application determine by clear and convincing evidence that such person will not pose a threat to the public in such person’s capacity as a licensee and that such person has been sufficiently rehabilitated to warrant the public trust.

http://www.ksbha.org/statutes/haact.html#2836

Thus, having been convicted of what amounted to a misdemeanor, Lakin could only have received his medical license by convincing 2/3 of the Board, he had been rehabilitated, that is, he has either resolved not to let his politics influence his care; or, he has determined President Obama is a U.S. citizen, thus meriting the public’s trust that his politics will not interfere with his care. But, he could not meet this burden; although, as you will see, he might have.

And, notwithstanding I advocated above a ‘hands-off’ approach when it comes to the man; this fact that he might have prevailed in his hearing before the KSBHA explains why I am writing this piece. In fact, Lakin really isn’t the focus here. Rather, I am focusing on the gang of Lakin apologists who have expressed real (or feigned) outrage that the board based its January decision (not to reverse its November ruling) on an inquiry into what they – the gang – characterize are his political beliefs, bemoaning this as yet another sign of the apocalyptic loss of 1st Amendment rights. But reaching this conclusion is logically possible only when taken out of context, a gyration too often accomplished by these vacuous zealots.

Let’s examine specifically the narrow focus of the board which has spawned this vapid reaction: its questions about the President’s release of what they called his long-form birth certificate and whether this answered the Applicant’s questions as to whether President Obama is a citizen.

First, here is a video recorded at some time before this hearing in which Mr. Lakin explains, the motivating factor for his refusal to serve is the fact, President Obama has not produced a birth certificate evidencing he was born in HI.

(On a selfish note; I cannot help but notice, the language he uses here strongly mimics the language I have been using for years to describe the issues at the heart of any eligibility inquiry, especially his reference to documents “in the public domain.” Nice going, gang! Also note he finally acknowledges that, whether President Obama is a citizen has absolutely nothing to do with whether he was lawfully elected, a fact I have been arguing for years.)

Now, fast forward to the KSBHA hearing. The board asked whether, given the fact, President Obama released his long form birth certificate; Mr. Lakin now believed he was born in America. BUT THEY ALSO ASKED THIS QUESTION: “Say if and when he’s elected again the Health Reconciliation Act becomes law, which it already is, and all of a sudden we have 20 million more people who’ve got healthcare are you going to refuse those people because this is?” Lakin answered, “No, no, no.” Ah, but then, he explained, the only reason he refused to practice medicine in Afghanistan was that his life was on the line, intimating that, since his life (presumably) would not be on the line when treating patients in KS, President Obama’s non-citizenship would not come into play. That is, even faced with the direct question, he did not concede the birth certificate established the President’s citizenship.

By responding in this way, that is, by not correlating his duty to provide care solely to his being a doctor, regardless of whether President Obama’s citizenship has been established to his satisfaction; Lakin was unable to convince the board of his rehabilitation.

But now, read this ‘press release’ posted on the TLAF web site back in April 2011.

Response to the Release of the Barack Obama Birth Certificate from the Terry Lakin Action Fund

Press Release: April 27, 2011

For Immediate Release
Baltimore, MD

…

Had the Obama administration agreed to allow the document unveiled today and other related documents as requested for discovery in Terry Lakin’s first pre-trial hearing, the matter would have been resolved and soldiers assured their military orders were lawful, given by a lawful Commander-in-Chief.

A good soldier, having played his part in this issue, would have returned enthusiastically to the service for which he is so ably trained.

…This document which was so casually dropped on the news corps could just have easily been provided twelve months ago or two years ago. Even six months ago, it would have prevented LTC Lakin being manacled and hauled away to Fort Leavenworth prison for standing up for the Constitution, consistent with the oath he took as an officer, and the rule of law.

…

http://www.terrylakinactionfund.com/obamaresponse.html

In short, LTC Lakin admitted last April that, had President Obama released this document before he – Lakin – refused to provide medical care to his fellow soldiers; he would have provided this care. That is, he reaffirmed the level of care he would provide was predicated in the first instance on whether he believed the President was born in the USA. Just like the board imagined he would, judging by their questions and comments at the hearing.

(Seriously, imagine you are the ‘public’ whose best interests the board is ostensibly trying to protect. Would you really want them to license a physician you might need to turn to for care; knowing that care depended on your not saying the wrong thing?)

But in this statement posted on his web site; Lakin also confirmed, he believed the long-form birth certificate released by the President proved he was born in the U.S.A.

So, here’s my question. Even granting for the sake of argument, that the KSBHA improperly inquired into Lakin’s politics; and even disregarding the correlation between Lakin’s belief as to the President’s citizenship and, his willingness to provide medical care; and the public’s right to expect a certain level of care from a licensed physician; why didn’t the Applicant just repeat for the board, the same sentiment he publicly expressed 6 months earlier, that is, ‘As the result of the release of that birth certificate, I now believe the President was born in the U.S.A.’?

I can only guess; and I would rather not speculate. Suffice to say, if the words coming out of his mouth over time evidence his heartfelt convictions and originate with him then, I would have expected more consistency.

As I have always said; I feel so sorry for Terry Lakin. At this same time, I believe he is getting exactly the outcome he deserves.

P.S. Of course, under the U.S. Code, that long form birth certificate released in April 2011 is just a political ad signaling the launch (in earnest) of the President’s campaign for re-election in 2012.

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Freedom costs.

MISSING the FINE PRINT in GEORGIA

©2012 jbjd

I will make this brief, because ever since ALJ Malahi issued the ruling adverse to Complainants at the administrative hearing on the ballot challenge in GA; I have been swamped by disillusioned ‘Minor v. Happersett‘ ex pats now ‘willing’ for the first time to try to shift the burden of proof (and production) as to whether President Obama is a NBC, onto those people who swore he was, the seminal point in the eligibility ‘cures’ I first proposed more than 3 years ago now, before the name Barack Obama was printed on state general election ballots.

(Note to those ‘birthers’ rendered depressed by Malihi’s findings (after raised artificially high by Orly’s ‘false flag,’ ‘I won!!! I won!!!’): just because an ALJ in GA says, MvH’s mention of the phrase NBC doesn’t mean what Leo Donofrio says it means; doesn’t mean, it doesn’t mean what he says it means. Or that Leo generally doesn’t know what he is talking about. Of course, as I wrote in jbjd’s FRENEMIES LIST, MvH’s use of the phrase NBC doesn’t mean what Leo says it means; and Leo doesn’t know what he is talking about. (I wrote this article before ALJ Malihi decimated Complainant’s reliance on MvH; although I believe he overstepped his lawful authority by ‘ruling’ on the meaning of NBC as that term appears in the U.S. Constitution; and by citing as precedent for a decision in a GA (11th circuit) administrative hearing, a decision by an IN (7th circuit) state appellate court, worse, in a state not even in the same (federal) circuit.) http://www.uscourts.gov/court_locator.aspx

At the risk of exposing myself as the only birther in the room able to view the recent events in GA from the ‘glass half full perspective’; I want to point out, in fact, a lot of good news came out of this fiasco. For example, counting down in no particular order of import:

5. Citizens of GA made a modest effort to take control of their state ballots using their state laws. High 5! (Now, if they would only have the self-confidence to do so on their own, that is, without inviting in all of these outside agitators! And speaking of outside agitators, it seems completely incongruous to me that the same people who eschew creeping federalism would invite into a ‘local’ state election law scrimmage; coaches and fans from across the country with the hope that by doing so, they somehow tilt in their favor the decision of the local referee!)

4. By participating at any stage in these ballot challenge proceedings, from formulating the legal cause of action setting off the event as well as the legal theory underpinning the charges; to drafting the documents; to representing the parties, to promoting and providing  coverage of the spectacle, which culminated in a live broadcast of the evidentiary hearing; those involved afforded people across the country the opportunity to see for themselves that the money they had been donating to such ’causes’ was being frittered away by a cast of characters with no business near a hearing room, let alone a courtroom. (Maybe now they will stop funding this litigious juggernaut. NOTE TO THOSE WHO STILL FAIL TO ACCEPT, THESE PEOPLE HAVE NO IDEA WHAT THEY ARE DOING: art2superpac, the same-old-limited-thinkers-in-the-birther-game-disguised-as-the-new-kids-on-the-block; are now soliciting funds to mount a legal challenge to ALJ Malihi’s ruling. Without attacking the credibility of this ‘configuration’ of the familiar cast of birther characters; let me just assure you, a challenge of this decision has even less chance of success than the original action.)

And now – I told you, I am in a hurry – the best news from GA has nothing to do with anything said or done by either Complainants or ALJ Malihi. Can you guess what that is? (HINT: what did I say was the best news coming out of the equally legally infirm Hollister case, from January 2009?)

1. Attorney Jablonski, by submitting a Motion to Dismiss in which he argued the inviolate right of the political parties to choose their candidates for the state election ballot; as opposed to the party’s right to have the name of its chosen candidate printed on that same ballot; confirmed that the way to keep Constitutionally ineligible candidates out of the WH was to keep their names off the state ballot.

View this document on Scribd

Because political parties don’t have a right to put the names of ineligible candidates on the ballot in states that limit ballot inclusion to only those candidates qualified for the job.

Some of you have reported, state officials respond to your complaints by insisting they have no right to tell the parties which candidates they may choose. You have indicated, they appear to be trying to fob you off. I have encouraged you not to argue but, instead, to respond as if they are sincerely misreading your intent. Concede the obvious. ‘Of course, state officials have no right to tell the parties which candidates they may run for office! It would be silly to think otherwise. That’s why I am not complaining they picked an ineligible candidate – they can pick anyone they want; I couldn’t care less – and I am not asking you to countermand their choice. But I do care about my state laws; and in this state, we don’t print the names of ineligible candidates on the ballot. So, I just want to make sure my state officials aren’t printing the names of those ineligible candidates on my ballot.’

Now, stop leaving your democracy in the hands of this crazy cast of characters; and write the damn laws. HOW to WRITE SMART CANDIDATE ELIGIBILITY LAWS in your STATE (and make applying to get on the ballot harder than applying to get into Harvard)  Then, make sure the rules are in place to carry out these laws. (I still can’t believe while these people went to all that trouble to file a ballot challenge on the basis of eligibility; they didn’t bother to ask the SoS to promulgate rules to carry out the GA ballot law.)

If your state already has a candidate ballot eligibility law; petition the SoS to promulgate emergency rules to carry out the intention of the legislation. There is no legitimate reason these cannot be in place by the time these same state officials receive the DNC Service Corporation’s Certification of Barack Obama’s 2012 nomination.

Finally, let me remind you, by writing smart candidate eligibility laws, you will not only guarantee that only the names of eligible candidates will appear on the ballot; but you will also lead the way to reach the federal appellate court with a case on point so as to obtain a legally binding definition of NBC. That is, the parties will, undoubtedly, protest these laws. (‘It’s unConstitutional for you to define NBC!’) And, of course, the state’s reply? ‘We are not defining NBC, as that term is used in Article 2, section 1 of the U.S. Constitution! That would be illegal! We are only defining, the names of which candidates we will print on our state ballots.’

Now, re-read HOW ADOPTING the “NATIONAL POPULAR VOTE INITIATIVE” CAN STEAL an ELECTION ‘BY HOOK’ and ‘BY CROOK’

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Freedom costs.

jbjd’s FRENEMIES LIST

©2012 jbjd

For the first time in ages, I got sick. And, for the first time in longer than that, I was too sick to go to work. In fact, I was so sick I didn’t even take advantage of being home; to work on my blog. But that was before I decided to put aside the music playlist I was compiling to peruse the blogosphere to sample materials related to these nationwide ballot challenges. Now, I am so angry that, I am actually angrier than I am sick. Fingers crossed, I will feel better if I write.

I have decided to compile a frenemies list from among those on-line characters spewing their interminable fixes to the glitches implicated either directly or tangentially in undermining our electoral system. The bizarre ‘cures’ championed, accepted by too many unwitting citizens as true, are doing more damage to our political system than was already accomplished in the past by sheer apathy. Because those of us who know better and who truly want our government to work as we presume the Founders intended; and who have been exercising our considerable energies (and finite monetary resources) to educating those of our fellow citizens without access to our information or facts or powers of analysis, often with only psychic remuneration; now are additionally compelled to expend our finite resources de-programming those same citizens who have been indoctrinated with this poisonous tripe.

Here’s how Urban Dictionary defines the word “frenemy“:

An enemy disguised as a friend.The type of “friend” whose words or actions bring you down (whether you realize it as intentional). The type of friend you ought to cut off but don’t cuz…he’s nice… good…you’ve had good times with him. He’s good people you can count on to bring you down again sometime in the near future.The friend you may or may not have cornered about his quicksand-like ways and keep around rationalizing “its in the past”…. The person who will continue to bring you down until you demand better for yourself.

So, who has aroused my ire to the point of becoming the first frenemy on my brand new list, the person who whether intentionally or through a personal character flaw is leading you astray under the guise of helping you to find your way?

Leo Donofrio, Attorney at Law.

And what precisely after all of this time has put me into a ‘I’ve-had-it-up-to-here’ stance with respect to Mr. Donofrio’s seemingly endless deluge of fecal matter-cum-legal critique? That *!*!*!* 200+-page amicus brief he assembled and is submitting to every ballot challenge forum he can find, from the GA OSAH hearing to the IL election commission.

(Note: For the purpose of this article, I am intentionally omitting any discussion as to the propriety of submitting such a brief in the first place.)

At first, I only intended to dismiss the brief as irrelevant, by specifically pointing to Leo’s reliably faulty analyses of so many other issues in the past few years. (Note: I am not charging here that everything Leo writes is legally unsound, but only that assuming it is unsound is safer than a detrimental reliance on its validity.) For example, more than 3 years ago, I drafted those military complaints after seeing those many failed attempts by Plaintiffs to address the issue of Presidential eligibility through the federal courts, whose cases were tossed out on procedural grounds. Looking for a way to get around the ‘standing’ problem they encountered, I found the the Federal Declaratory Judgment Act, which led to the idea that people seeking redress in federal court could ask for a Declaratory Judgment, using state National Guard Plaintiffs subject to federal recall. Naturally, when drafting the military complaint, I cited to the applicable federal law. Yet, Leo criticized my proposal as un-Constitutional, absurdly arguing federal courts could not issue declaratory judgments! Now, it’s true, the Constitution explicitly says, the authority of the federal court is restricted to deciding “cases” and controversies.”  http://www.law.cornell.edu/wex/controversy  But, of course, the Federal Declaratory Judgment Act provides a mechanism for obtaining the court’s opinion within the framework of this restriction.  (His rationale in this instance represented a common flaw that appears in Leo’s reasoning: he looks narrowly to the ‘plain language’ in a passage without considering its practical meaning in the larger legal and political context.) (FYI, here is the Federal Rule of Civil Procedure on Declaratory Judgments. http://www.law.cornell.edu/rules/frcp/rule_57 For a comprehensive explanation as to when the federal court may issue declaratory judgments, see http://www.law.cornell.edu/anncon/html/art3frag21_user.html)

Then, there was the time he argued that he had found a federal law allowing a member of the security division of the Executive branch to withhold ‘secrets’ from the President, the boss of the Executive, based on a determination, this is in the public interest. I spent hours explaining, especially on CW’s blog, this is not what the law means. For definitions of the terms contained in this section of the law, you have to look at another section of the law. And those definitions spelled out, the law Leo claimed applied to the President applied only to contract employees. (Or you can use your common sense!) Indeed, I intended to make my case that any ‘legal’ work produced by Mr. Donofrio is irrelevant; by searching through years of internet postings, in which I refuted such tripe; and even began such a search. But I found the task overwhelming. (Readers of the CW blog familiar with this exchange might look it up and send here; I will post.)

I also figured Leo likely had only reached the 200-page milestone by incorporating into this amicus brief much of that same flawed ‘legal’ reasoning I had already de-bunked over the years. That’s when I decided to skim the brief. And, sure enough, this document contains many of those ‘legal’ arguments conjured up only in Leo’s imagination, which arguments even if they could be said to validate his personal private machinations; nonetheless still detract from the practical approach required to engage an active citizenry in shoring up our electoral system so as to ensure, only the candidate who is a NBC, can be elected for the job.

PLEASE, LEST YOU ARE TEMPTED AT THE OUTSET OF MY ANALYSIS TO COMPARE, CONTRAST, OR CHALLENGE RESPECTIVE CREDENTIALS WHICH HAVE BEEN MADE PUBLIC BY US ON-LINE PUNDITS; STOP! I have asked readers to consider our respective legitimacy only by examining on-line track records based on criteria that include reliability of analysis, and accurate reporting of facts, a feat which can be accomplished even absent full access to the particulars in his or her CV. (Let’s start with this fact. The legal and political analyses of issues related to presidential eligibility which I began in 2008 in response to voter concerns, led me to recommend at that time, given existing state laws, the mechanism for keeping Barack Obama out of the WH was to keep his name off the state election ballot. Leo only accessed this mechanism for redress of the eligibility dilemma, 3 1/2 years after the fact.) CHALLENGING BO’S ELIGIBILITY TO GET ONTO THE GENERAL ELECTION BALLOT AS THE DEMOCRATIC CANDIDATE FOR POTUS)

Leo begins the amicus brief with his assumptions of these facts: 1) Barack Obama was born in HI; and 2) his father was a British subject at the time of his birth. Then, based on these assumptions, he argues, Barack Obama is not a NBC because Minor v. Happersett defines only those citizens born in the U.S. of 2 U.S. citizen parents are NBCs.

No, it does not. And I have explained several times, it does not. For example, see SENSE and non-SENSE, relying on such sources such as the Legal Information Institute of Cornell University School of Law. Nor does Minor in any way limit the definition of NBC to only those people born in the U.S. of 2 U.S. citizen parents.

The decision from the lower courts which was appealed to the Supreme Court in Minor was quite narrow:

The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0088_0162_ZO.html

Thus, the main focus of this case was not on citizenship; in fact, everyone involved in the case already agreed, based on the wording of the 14th Amendment, she was a citizen. Rather, the question presented to the high court was whether privileges and immunities connected to  citizenship included the right to vote. The lower courts had ruled, it did not. Minor disagreed; that’s why she appealed. But before the high court could issue what would then become a legal “fact” with respect to voting as a privilege and immunity of citizenship; it first had to determine whether those “persons” now classified in the 14th Amendment as (having always been) citizens with a right to privileges and immunities, (historically) included women. If yes; the court would then determine whether voting had historically been treated as a privilege and immunity of citizenship, so as to determine whether it would be a privilege and immunity of citizenship, now. For this analysis, the court looked back at the history of women-qua-persons-who-would-have-been-considered-citizens pre-14th Amendment. Determining Minor was always considered a citizen (and thus, would have enjoyed the privileges and immunities of citizenship) even before the formalization of that designation in the 14th Amendment, was easy. As the court pointed out, given her specific set of circumstances – she was a woman born in the U.S. of 2 U.S. citizen parents – the literature was consistent. Thus, at a minimum, she was a citizen entitled to the same privileges and immunities of all citizens. Then, the court ‘just’ had to consider whether voting was one of these privileges and immunities which had historically been attached to such citizenship.

But you didn’t stop there.

Referring again to the Minor court, you wrote, “Their holding was that natural-born citizens were citizens at birth who do not require the 14th Amendment to establish their membership in the nation.” No, it was not; the holding in Minor had absolutely nothing to do with citizenship. Remember, the lower courts all agreed, Minor was both a citizen of MO and of the U.S.; and that voting wasn’t a privilege and immunity with respect to such citizenship. Minor appealed to the high court on the narrow grounds, she believed voting was a privilege and immunity tied to her citizenship under the 14th Amendment.

Here’s the holding in Minor, again, closely correlated to the narrow question asked:

Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we AFFIRM THE JUDGMENT.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0088_0162_ZO.html

As for your statement that the court [said] Minor was a citizen before the 14th Amendment, well, of course, it could not say otherwise, since everyone who was a U.S. citizen before the 14th Amendment was still a citizen after its passage; and no one who wasn’t already a U.S. citizen was made a citizen by this Amendment. The court actually said,

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. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an [p166] association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association.

Id.

Read the legislative history; the 14th Amendment did not confer a new status of citizenship on anyone not already a citizen before its passage, whether native, natural born, or naturalized. It merely had to find that   http://www.law.cornell.edu/anncon/html/amdt14a_user.html#amdt14a_hd1

And then, you really went off the deep end. “The Court determined it was necessary to define the class of natural-born citizens, and the definition remains current legal precedent.”

Leo, for goodness sake, get a grip. The court explicitly only set out to confirm that the word “citizen” appearing in the 14th Amendment also meant women who ‘belonged’ to this country before the 14th Amendment officially codified they were citizens. Because once it confirmed that women had always been considered ‘citizens,’ from the founding of this country and, therefore, that all of the privileges and immunities attached to such citizenship, beginning at that time, should apply now under the 14th Amendment; it could then figure out whether voting had been treated as a privilege or immunity of that citizenship. It made no difference to the analysis rendered by the court whether Minor could be said to be a native, natural born, or naturalized citizen but only whether she could be said to have been a citizen even before that word was codified in the 14th Amendment; and only because the rights enumerated in the 14th Amendment were limited to citizens. Yes, by reasoning that Minor was a citizen before the 14th Amendment the court also confirmed, the amendment did not confer new citizenship status or rights but merely ‘codified’ s status which already existed with respect to Minor. However, it did not, as you would suggest, confirm, in dicta, that the only “citizens” who were citizens before the 14th Amendment were NBCs; rather, it only confirmed that, at least, NBCs (like Minor) were citizens before the 14th Amendment.

Thus, consistent with the lower courts, the Supreme Court agreed, Minor was a citizen according to the language in the 14th Amendment. Then, examining the implications of citizenship before the 14th Amendment, the court found, in fact, Minor rightly could be considered a citizen before the 14th Amendment. But, alas, having examined the historical privileges and immunities ancillary to citizenship before the 14th Amendment; it also agreed, voting appears not to have been one of those privileges and immunities of citizenship. Thus, the court did not have to enforce a right to vote in MO. (Interestingly, the court  virtually invited the electorate to cure this mistake.)

We have given this case the careful consideration its importance demands. If the law is wrong, it ought to be changed; but the power for that is not with us. The arguments addressed to us bearing upon such a view of the subject may perhaps be sufficient to induce those having the power, to make the alteration, but they ought not to be permitted to influence our judgment in determining the present rights of the parties now litigating before us. No argument as to woman’s need of suffrage can be considered. We can only act upon her rights as they exist. It is not for us to look at the hardship of withholding. Our duty is at an end if we find it is within the power of a State to withhold.

Id.

In sum, with respect to the 14th Amendment and citizenship, NO U.S. CITIZENS, REGARDLESS OF WHETHER THEY SATISFIED THE CITIZENSHIP REQUIREMENTS IN THEIR INDIVIDUAL STATES OR THE DISTRICT OF COLUMBIA, NEEDED THE 14TH AMENDMENT TO ESTABLISH THEIR U.S. CITIZENSHIP. BOTH THOSE CITIZENS WHO WERE CITIZENS ON THE BASIS THAT THEY WERE BORN HERE OF 2-CITIZEN PARENTS; AND THOSE CITIZENS WHO WERE CITIZENS ON THE BASIS THAT THEY WERE BORN HERE OF NON-CITIZEN PARENTS; AND THOSE CITIZENS WHO WERE CITIZENS ON THE BASIS THAT THEY WERE NATURALIZED HERE,WERE ALREADY CITIZENS OF THE NATION BEFORE THE 14TH AMENDMENT, EVEN IF THESE SAME U.S. CITIZENS FAILED TO QUALIFY AS CITIZENS OF INDIVIDUAL STATES UNDER THE LAWS OF THOSE INDIVIDUAL STATES OR THE DISTRICT OF COLUMBIA. THUS, ALL OF THESE CITIZENS WHO WERE ALREADY CITIZENS OF THE NATION BEFORE THE 14TH AMENDMENT, WERE MENTIONED IN THE 14TH AMENDMENT ONLY FOR THIS NARROW PURPOSE: TO MAKE SURE THAT EVERYONE NOW KNEW, BEING CITIZENS MEANS, BEING ENTITLED TO THE SAME DUE PROCESS, EQUAL PROTECTION, AND PRIVILEGES AND IMMUNITIES AS ALL OTHER CITIZENS FROM NOW ON.

Got that now? And the only reason the court even reached the analysis of Minor’s citizenship was so as to confirm the word “citizen” and “person” as used in the new 14th Amendment necessarily meant even before the 14th Amendment, women who were similarly situated, that is, women born here of 2 citizen parents, but only because Minor was a woman born here of 2 citizen parents. Once it determined the threshold issue, that is, the new Amendment did, indeed, apply to the woman named in the present case; it stopped the ‘citizen’ aspect of its analysis and reached the voting qua “privileges and immunities” of citizenship core of the case. The Minor court only ruled, for the first time, under this new right vested in citizens by the 14th Amendment, voting cannot be said to be a “privilege or immunity.” It did not rule that only citizens born here of 2 citizen parents are NBCs.

Then, Leo contradicted himself.

The Minor Court’s construction of the natural-born citizen clause was the independent ground by which the Court avoided construing the 14th Amendment’s citizenship clause.Therefore, such construction is precedent, not dicta, despite Presidential eligibility not being an issue in that case. The Court determined it was necessary to define the class of natural-born citizens, and the definition remains current legal precedent.

As I have stated, the Minor court did, in fact, undertake a legal and historical analysis which, as a threshold issue, determined that, as the word “citizen” was used in the new 14th Amendment; Minor was a citizen even before the 14th Amendment. Thus, having considered the issue of Minor’s pre-14th Amendment citizenship (status) in order to “construe” that the word “citizen” in the 14th Amendment means her; the court cannot be said to be simultaneously “avoiding construing the 14th Amendment’s citizenship clause.” It did construe the 14th Amendment’s guarantee to equal privileges and immunities of all citizens, to mean all “persons” who have ‘belonged’ to this country even before the 14th Amendment, including women. At this same time, it did avoid an exhaustive exploration of all of the possible iterations of  ‘women belonging to a country’ which also might rightly have triggered the designation “citizen” that appears in the 14th Amendment and, thereby implicated the “privileges and immunities” clause. And it avoided an exhaustive consideration of these ancillary issues because in the present case, it did not have to reach these issues in order to render its ruling on the case before the court.

Finally, Leo again raises the specter of Vattel. For goodness sake, give up that ghost! DEFINITION on DEMAND

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Freedom costs.

SENSE and non-SENSE

UPDATE:  Please read my Comment below, containing an excerpt from the Supreme Court’s ruling in the Slaughterhouse Cases, which emphasizes this point with relation to the 14th Amendment’s language on citizens.  In short, if the 14th Amendment can be said to be conferring citizenship rather than merely codifying those definitions already understood in law and practice then, it does so only by establishing the distinction between the rights accruing to citizens as citizens of the U.S.A. which rights are now uniform; versus the rights of citizens as citizens of the states (in which they reside), which vary according to the state.  

© 2011 jbjd

No legally binding definition exists of the phrase “natural born citizen” as written in Article II, section 1 of the U.S. Constitution; and no such definition will be forthcoming until a federal appeals court, including the U.S. Supreme Court, rules, this is the definition, in the holding of a case or controversy directly on point, that is, one which requires the court to formulate such definition so as to reach resolution of the matter properly before the court.

I have said this a ‘million’ times, with only slight variation, since I began blogging in 2008. And, as I have also indicated, for a couple of reasons, at this point, that is, now that President Obama has been elected; I couldn’t care less whether he is a NBC; and I have been saying this for a long time, too. What difference does it make whether he is a NBC when we enacted no laws that required our state Electors to elect only a President who is Constitutionally eligible for the job!  (This would explain my insistence that present calls for Impeachment cannot be predicated only on his Constitutional ineligibility for office.) And, regardless of the absence of documentary evidence available in the public record that, he is even a C, which status certainly was well defined and accepted by the aforementioned legal authorities even before this definition was codified in the 14th Amendment for the purpose of qualifying who is entitled to “privileges and immunities”; it appears true that, millions of my fellow citizens who voted for (Electors for) the man, could not have cared less whether he is a NBC, either, even before his election.

Thus, I have steered clear of substantively addressing the ‘legal’ arguments out there which insist, a binding definition of NBC exists.

However, obviously, this recognition of the status quo, that is, no legally binding definition exists of NBC; and my present indifference to Obama’s Constitutional eligibility for office; have had little to do with my continuing efforts to identify a mechanism for determining whether he is a NBC, for those people who want to know. Indeed, my mission has always focused on the larger issue of understanding how our government, in general; and particularly our electoral system works and, where it does not work, how we might fix it.  (Yes, in so doing, I figured out how to spark the court case that could result in a legally binding definition of NBC but, that is not the focus of this post.)

And it is because my focus is on fixing what is broken in our system that, notwithstanding I have refused to enter the ‘legal definition of NBC’ fray in the past; for the moment, I changed my mind.  Because now, 3+ years into our national discussion about Constitutional eligibility; about to dive into a new general election cycle; we are still being sidetracked by such folly.  So, responding to a comment from long-time “jbjd” reader, Mick; I decided to weigh in, once and for all, on the case most often cited to sustain this drivel.

From Mick:

Again, a circular firing squad you present. If there is no judiciable definition of natural born Citizen, as you say, then how can the Secretary of State of any state verify whether a POTUS candidate is eligible? As usual, many words in this post saying nothing, except the whining about someone stealing your “work”. How about this definition, straight from SCOTUS in Minor v. Happersett: “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.” Pretty plain to most people with any sense.

Here is my response.

Mick: The legal case you mention – Minor v. Happersett – does not rest on defining what is meant by the term “natural born citizen.”  Indeed, the case is not at all concerned with distinguishing from among “natural born citizen”; or “native citizen”; or “naturalized citizen.” Rather, this is a (state) voting rights case to determine only whether MO law can rightly prohibit women from voting, brought under the “rights and privileges” clause of the 14th Amendment. In other words, is suffrage a “right” or “privilege” that now must be protected for female citizens otherwise prohibited under state law from voting on account of their gender?  But as a threshold matter, the court must first determine whether the word “citizen” as this is used in the 14th Amendment; means women, too.

Thus, the court conducts an extensive analysis (non-binding dicta) of the legal posture of historical authorities, both in common law, statutes, and state constitutions, with respect to the meaning of citizen, as this applies  generically.  It acknowledges, these authorities have always been consistent in saying, the child born in this jurisdiction, of citizen parents is a natural born native citizen; but inconsistent on whether the same can be said of children born here of non-citizen parents. Both of Ms. Minor’s parents were citizens at the time of her birth.  The court wrote, therefore, there was no need to “reach” the question as to whether she would still be a native natural  born citizen if her parents were not citizens.

Here is the whole quote from that same passage you excerpted in your comment. Now, see if this makes more sense.

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.

Then, having determined, Ms. Minor is by all other means, a citizen; the court similarly conducts an extensive analysis (non-binding dicta) of the legal posture of historical authorities, both in common law, statutes, and state constitutions, with respect to the meaning of citizen, as this applies  to women.  And, it concludes, women were always historically considered citizens (who satisfied the uniformly accepted threshold requirement of birth in this jurisdiction to citizen parents).  Thus, the word “citizen” in the 14th Amendment as this relates to the “privileges and immunities” clause, means, women, too.  (The court makes clear that, as she is a natural born native citizen, her citizenship, and impliedly the citizenship of all women and men similarly situated, (though not necessarily the citizenship of people born here to non-citizen parents, or who achieved citizenship through naturalization because, as the court had already pointed out, the authorities had heretofore been mixed as to whether these were citizens and, it would not resolve that issue here) was not newly conferred by the 14th Amendment but only newly codified as entitling them as citizens to the same “privileges and immunities” as all citizens of the several states. That is, the 14th Amendment does not create a new definition of citizen.)

Then, having determined, Ms. Minor is by all other means, a citizen; and that, citizen means, women; the court similarly conducts an extensive analysis (non-binding dicta) of the legal posture of historical authorities, both in common law, statutes, and state constitutions, with respect to whether suffrage can be said to be a “right” or “privilege” under the 14th Amendment.  And that’s where Ms. Minor’s case fails. Because voting in the several states had always been largely exclusive to men.  Even when it was not exclusive to citizens.

Besides this, citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage. Thus, in Missouri, persons of foreign birth, who have declared their intention to become citizens of the United States, may under certain circumstances vote. The same provision is to be found in the constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas.  Id.

In other words, Ms. Minor was entitled to all of the privileges and immunities of all citizens; and voting wasn’t one of those privileges and immunities.

Finally, you ask, how can the Secretary of State of any state verify whether a candidate for President is eligible for the job?  S/he cannot.  Because, right now, no law says, s/he must, even in those states that require candidates to be qualified for office to appear on the ballot.  Yep; even in those states where the legislature has already acted, no SoS had promulgated rules and regulations defining such ballot eligibility, let alone identifying whose job will be, to check.

In conclusion, Mick, no legally binding definition exists of the phrase “natural born citizen” as written in Article II, section 1 of the U.S. Constitution; and no such definition will be forthcoming until a federal appeals court, including the U.S. Supreme Court, rules, this is the definition, in the holding of a case or controversy directly on point, that is, one which requires the court to formulate such definition so as to reach resolution of the matter properly before the court.  And, absent a legally binding definition of NBC; no state with a law requiring candidate eligibility to appear on the ballot, has even (attempted) to enact rules and regulations to define NBC for the sole purpose of determining ballot eligibility.

Make sense?  ADMINISTRATOR

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For those of you who will not read the whole case, here is a syllabus, prepared by the court.

Syllabus

SUPREME COURT OF THE UNITED STATES

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88 U.S. 162

Minor v. Happersett

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Argued: February 9, 1875 — Decided: March 29, 1875

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ERROR to the Supreme Court of Missouri; the case being thus:

The fourteenth amendment to the Constitution of the United States, in its first section, thus ordains; ^[n1]

“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. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws.”

And the constitution of the State of Missouri ^[n2] thus ordains:

“Every male citizen of the United States shall be entitled to vote.”

Under a statute of the State all persons wishing to vote at any election, must previously have been registered in the manner pointed out by the statute, this being a condition precedent to the exercise of the elective franchise.

In this state of things, on the 15th of October, 1872 (one of the days fixed by law for the registration of voters), Mrs. Virginia Minor, a native born, free, white citizen of the United States, and of the State of Missouri, over the age of twenty-one years, wishing to vote for electors for President and Vice-President of the United States, and for a representative in Congress, and for other officers, at the general election held in November, 1872, applied to one Happersett, the registrar of voters, to register her as a lawful voter, which he refused to do, assigning for cause that she was not a “male citizen of the United States,” but a woman. She thereupon sued him in one of the inferior State courts of Missouri, for wilfully refusing to place her name upon the list of registered voters, by which refusal she was deprived of her right to vote.

The registrar demurred, and the court in which the suit was brought sustained the demurrer, and gave judgment in his favor; a judgment which the Supreme Court affirmed. Mrs. Minor now brought the case here on error.

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

2. In that sense, women, of 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.

3. The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment does not add to these privileges and immunities. It simply furnishes additional guaranty for the protection of such as the citizen already had.

4. At the time of the adoption of that amendment, suffrage was not coextensive with the citizenship of the States; nor was it at the time of the adoption of the Constitution.

5. Neither the Constitution nor the fourteenth amendment made all citizens voters.

6. A provision in a State constitution which confines the right of voting to “male citizens of the United States,” is no violation of the Federal Constitution. In such a State women have no right to vote.

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NOTE TO READERS:  Those trusted legal sites on which I have been relying for much of the research I conduct on your behalf have, up to now, provided unlimited access to their voluminous holdings, for free.  But I donate money to those sites, anyway; because it’s the right thing to do.  After all, someone at the other end of the computer is working hard to compile and maintain the library and operate the site.  I pass on the results of this research, without charge, to you; but, this does not mean, the work is free. It only means, up to now, I could maintain the quality of the blog by absorbing all of the cost.  This is becoming prohibitive; and I will not sacrifice quality.  Please, hit one of the PayPal buttons in the sidebar of the blog; because it’s the right thing to do.

MICHELLE GOLDBERG HAMMERS ANOTHER NAIL in the MSM COFFIN

© 2011 jbjd

Granted, Michelle Goldberg has her own web site; has written a couple of books which, according to her, were well researched and appear to be selling well (id.); and writes a column for the Daily Beast. But assuming she means what she says in her recent diatribe, “Why Birthers Won’t Die,” that is, taking on face value that she is not writing just for provocation or brainwashing then, I cannot emphasize enough: when it comes to issues related to establishing Barack Obama’s Constitutional eligibility for POTUS, Ms. Goldberg has demonstrated she has absolutely no idea what she is talking about.

It’s not just the fact she repeats the fallacy, the hard copy of the electronic image President Obama calls a birth certificate and recently ‘released’ to the press, is actually a long form birth certificate, that makes any information coming from her suspect.  (I will write another article focusing on the lunacy of anyone’s continued bona fide belief, photocopying any electronic image adds to its authenticity.) Obama’s Director of Communications, Daniel Pfeiffer, posted this image on the WhiteHouse.gov blog. Ms. Goldberg even links her readers to that image effectively reasserting its authenticity.  But Pfeiffer’s job is to shape the President’s message and not to communicate news, which is the job of the Press Secretary (notwithstanding Robert Gibbs, Director of Communication of Obama’s Presidential campaign and former Press Secretary for President Obama often conflated those 2 positions).  Unlike Ms. Goldberg, Mr. Pfeiffer was doing a good job, by shaping the message.

Or that, she uses Mr. Corsi’s refusal to buy into this lie (that a bona fide birth certificate has been released) as a weapon against his motives and intellect.  In spades.

Much of Where’s the Birth Certificate? rehashes old, debunked stories meant to cast doubt on Obama’s birth in Hawaii. But the book also claims that even if Obama was born in the United States, he still might not be a “natural-born citizen” because of his father’s foreign citizenship, which would make him ineligible for the presidency. To make this argument, Corsi dredges up a constitutional theory popular in white supremacist and anti-immigrant circles, making an invidious distinction between those granted citizenship by the 14th Amendment and those who were citizens under the Constitution as originally written.

What?  Only those identified with “white supremacist and anti-immigrant circles” espouse that a bona fide difference exists between the terms “natural born citizen” in Article II, section 1 of the Constitution; and the term “citizen” as used in the 14th Amendment?  (Of course, I reject claims by Corsi or anyone else that citizens of non-citizen parents are not natural born citizens; and this only makes sense, since I maintain that no ‘legal’ definition of NBC exists absent a ruling by a federal appellate court, in a case on point.)

Worse, adding insult to injury, Ms. Goldberg justifies her political stereotyping using flawed reasoning, thereby additionally exposing her Constitutional  ignorance.

But Corsi’s ideas about the 14th Amendment, if taken seriously, wouldn’t just affect the children of immigrants—they could disqualify all black people from the presidency. “Obama defenders who want to define him as a natural-born citizen because he is native-born and a citizen under the 14th Amendment are engaged in an effort to redefine Article 2, Section 1, away from its original natural law meaning,” Corsi writes. The original meaning, of course, did not encompass black people. That’s why we needed the 14th Amendment in the first place.

Let me point to the absurdity of just one segment of this drivel:  Ms. Goldberg’s mistaken focus on Corsi’s phrase, “effort to redefine Article 2, Section 1, away from its original natural law meaning,” to mean that, Mr. Corsi rejects Obama’s Presidency based on his race.  She reasons, it is this focus on race which motivates Corsi to object to any attempt to steer the conversation toward 14th Amendment inclusion of blacks as eligible to become President, and away from the original intent, which clearly excluded blacks. But whether he is racist; she doesn’t know her Constitution and, based on her ignorance, obviously misconstrued the ‘plain meaning’ of Corsi’s words.

The phrase “natural born citizen” is listed in Article II, section 1, as a condition of Presidential eligibility.  And, the word “citizen” is listed in Article I, sections 2 and 3, as the eligibility requirements for Representative and Senator, respectively, put there almost 100 years before the 14th Amendment.

No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.

No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.

Get it?  The Drafters used the word “citizen” in 2 (two) different contexts of eligibility for office, one to be President; and the other to be a member of Congress. (Technically, the wording for President applies to eligibility; whereas the term for Congress applies to actual holding of the position.  This makes sense since members of Congress are elected directly – perhaps the Drafters did not trust the average citizen to choose the right person for the job – whereas Presidents are chosen by Electors who, it would appear safe to predict at the time, could not be anticipated to elect a President they were not certain was eligible for the job .) Since the Drafters used these 2 (two) different phrases, the tenets of statutory construction require that, we must assume, therefore, the Drafters meant 2 (two) different things.  “When Congress includes a specific term in one section of a statute but omits it in another section of the same Act, it should not be implied where it is excluded.” Arizona Elec. Power Co-op. v. United States, 816 F.2d 1366, 1375 (9th Cir. 1987); see also West Coast Truck Lines, Inc. v. Arcata Community Recycling Ctr., 846 F.2d 1239, 1244 (9th Cir. 1988), cert. denied, 488 U.S. 856 (1988). http://www.lectlaw.com/def2/s104.htm

See, contrary to Ms. Goldberg’s wishful projection; Corsi wasn’t at all waxing nostalgic, harkening back with longing to a time in our history when no blacks were counted as citizens and thus, could not be elected President (or Representative or Senator).  Rather, his use of the phrase “original natural law meaning” referenced the requirement of eligibility for President in Article II – natural born citizen – as opposed to, say, the original requirement in Article I for holding the office of U.S. Representative or U.S. Senator – citizen – which excludes the modifier, natural born.  Both of which applications of the term “citizen” he undoubtedly would agree should presently be read to include all citizens now Constitutionally defined as such, through the 14th Amendment.  Even those whose skin color is black.

In other words, even assuming a preference for color; Corsi just wants people to stop conflating “citizen” with “natural born citizen.” Get it?

But that excerpt points to my biggest objections to Ms. Goldberg’s hit piece on Mr. Corsi: her disingenuous diatribe against the man for what she paints as a racially motivated focus on the 14th Amendment. Those of you who have dissected the information on this blog probably already ‘get’ that she reverses cause versus effect. In fact, the eligibility argument only arose because Obama raised it by calling himself a “native” citizen and not “natural born.”  Indeed, he set up this false dichotomy, way back in 2007, when he – or perhaps more accurately, his campaign’s Director of Communications, Robert Gibbs – wrote “Fight the Smears,” the propaganda piece I have argued they would never have made public had he stolen the D nomination before the D Corporation Presidential Nominating Convention.  And in that same electronic advertising campaign, he posted the red herring argument about the 14th Amendment, couching it in racial terms, perhaps to misdirect the attention of astute citizens who otherwise might have noticed, he had conflated the 2 (two) Constitutional terms; and suspected a likely reason to be, he was trying to mask his ineligibility.

Want to see the evidence that supports my hypothesis, Ms. Goldberg?  IF DROWNING OUT OPPOSING FACTS IS “un-AMERICAN” THEN IGNORING UNPLEASANT FACTS MUST BE un-AMERICAN, TOO; or  TOO IGNORANT TO LEAD Of course, I am only a blogger.  (Then again, so was Dan Pfeiffer, in the context of posting that electronic image of the ‘document’ entitled, “Certificate of Live Birth” on the White House blog.)

Granted, maybe I am holding Ms. Goldberg to too high a journalistic standard.  After all, in the context of writing for the DB; she wears the hat of “columnist,” arguably absolving her from the profession’s constraints of both accurate and impartial reporting.

(In the interest of full disclosure, I am reporting that, evidently, Mr. Corsi’s book endorsed the work originating here on “jbjd” focused on filing citizen complaints of election fraud with state A’sG in those states with existing laws requiring candidate eligibility for office in order to access the ballot.  However, I have not read his book.)

BECAUSE I SAY SO

©2011 jbjd

Compared to the number of people who click on the latest article posted here on “jbjd,” I have relatively few subscribers, either to the articles or, to the Comments.  But sometimes, the article only begins the dialogue; the Comments, and my Replies to this input from my readers, are often ‘where the action is.’  Occasionally, I review older Comments and my Replies, especially when this involves a new Comment to an old Post.  In retrospect, it appears to me that the articles I post evidence perhaps a more fully developed explanation of the point I want to make – some might call this rambling – or a greater attention to detail; but this only reflects the nature of the blog.  That is, I generally write the article in a way I hope will maximize the likelihood, readers will understand what I am saying; and I Reply to Comments so as to clarify any misunderstanding.

This morning, I Replied to a Comment sent in by “Mick” on DEFINITION on DEMAND, which was originally posted 1 (one) month ago.  In hindsight, I think the ideas we expressed in our exchange merit their own post.

In the interest of time, instead of writing that Post, I will re-Post that conversation.

Micksays:

April 14, 2011 at 07:55

Your “update”, of course, is nonsense. Pontifications of a sharp mind dulled by relativism. True, SCOTUS is the ultimate arbitter of Constitutional terms, but the Constitution was written to be understood by the common man. 200 years of lawyers playing telephone with it, and their own inflated egos that insist that stare decisis overrides any original meaning, have rendered it mush. Any law that is against the Constitution is null and void. If there is no meaning of the term natural born Citizen that is actionable, then the states have nothing to base any vetting of a candidate, and A2S1C5 is uninforcable. Thus is the end result of your relativist, circular firing squad logic. I would expect no less from one who admires both Howrd Zinn and Hillary Clinton. The meaning is well known from over 200 years ago, and is expressed consistantly over that time. I laugh at the nonsense you write, but it is also a sad commentary on the state of both the law profession and teaching profession.

Mick: Howard Zinn was a WWII combat veteran, which conduct I would imagine most citizens of this country would agree has more than earned him the ‘right’ to be free of the scorn of the ‘thought police.’

You write, “Any law that is against the Constitution is null and void.” Okay; but who gets to decide? For example, assume those states that formerly provided public ‘facilities’ (train cars) to its citizens stratified on the basis of their color, actually believed the definition intended by the term “equal protection” expressed in the 14th Amendment to the Constitution was not violated by such conduct. Of course, many of those citizens affected by this conduct believed otherwise, and so challenged the prevailing view of the Constitution. Based on the case brought before the SCOTUS, it ruled, “separate” can still mean, “equal.” (Plessy v. Ferguson).

For the next 6 decades, many citizens still believed the SCOTUS had gotten it wrong. And an argument was re-submitted to the court, using better evidence, in a case involving public education services. This time, rejecting stare decicis, the court ruled, “equal” cannot exist when the government provides services to people separated by their race. (Brown v. Board).
http://www.loc.gov/rr/program/bib/afam/afam-brown.html

This is what “checks and balances” is all about. According to the Constitution’s delegation of power to the SCOTUS to interpret what the document means; separate was equal during the 6 decades between Ferguson and Brown. Of course, this does not mean, states engaged in separating the provision of services by race, notwithstanding Plessy; or that, state constitutions did not prohibit such segregation.

You mistakenly conflate defining NBC for the purpose of establishing eligibility for POTUS; with establishing eligibility for having the state print a name on the ballot. I have been advocating that states set ballot eligibility, only. In fact, I maintain, absent a Constitutional amendment; this is the only way to finally get a legal definition of the term (which must come from the federal appellate court, which includes the SCOTUS).

ADMINISTRATOR

Comments?