by Harold Gielow, ©2022

(Nov. 23, 2022) — While time is available, before the campaigning begins in earnest, Virginia needs to stake a position that unless and until there is a Supreme Court decision stating plainly what the Article II eligibility requirement for president that they be a natural born citizens means, those candidates of questionable eligibility will not be included on Virginia ballots. 

Questionable eligibility in regards to this includes:

Those born in the jurisdiction of the United States of non-citizen parents.

Those born in the jurisdiction of the United States of parents not having permanent legal residency status.

Those born in the jurisdiction of the United States to a non-citizen father and a citizen mother.

Those born in the jurisdiction of the United States to a non-citizen mother and a citizen father.

Those born outside the jurisdiction of the United States to a citizen mother and non-citizen father.

Those born outside the jurisdiction of the United States to a citizen father and non-citizen mother.

Those born within the jurisdiction of the United States to a dual-citizen parent.

These permutations could go on, but the point is, we do not have clarity as to what constitutes an Article II natural born citizen in regards to eligibility to run for and assume the office of president.  Not having that clarity, it is impossible for states to approve candidates on their ballots for said offices and ensure the law is followed – that those on the ballots are eligible for the offices they seek.

As it stands, without clarity, each permutation is tested.

Obama – Kenyan father, US-citizen mother, born in Hawaii.

Ted Cruz – Cuban father, US-citizen mother, born in Canada.

Tulsi Gabbard – US-citizen father and mother, born in unincorporated American Samoa.

Kamala Harris – Jamaican father, Indian mother, neither permanent legal US residents on her birth in Oakland, California.  Became a Jamaican citizen at birth due to her Jamaican-citizen father per the Jamaican constitution.

Nikki Haley –  born in America to two non-citizen parents.

The list goes on.  Surely citizens deserve to know what this Article II language means.  It is a constitutional question which Justice Thomas has joked before Congress that the court is avoiding.  Why would they avoid it?  How can they avoid it?  Because the states do not require that they clarify it.  Were a state to refuse to include those of questionable eligibility, questionable because they simply lack the clarity of a SCOTUS decision on the matter, my guess is that the court would grant cert to consider the question. 

Request that your office take positive steps to seek a SCOTUS decision on this question and inform the political parties that, absent such a decision, candidates of questionable status due to this lack of clarity shall not be included on Virginia ballots for presidential or vice presidential office.

This is a constitutional question on which our Supreme Court has never ruled.  It regards eligibility requirements for the highest office in our republic.  Surely, this is an issue of sufficient importance for the great state of Virginia to lead the nation in demanding a resolution once and for all.

Very respectfully,

Harold R Gielow
LtCol USMC (ret)
gielow.org

——————–

[Editor’s Note: The author informs that he sent the letter to Virginia Attorney General Jason Miyares.]

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  1. Response from Joseph DeMaio to Rudy Lee:
    —————————
    “But there’s no indication a majority of the current U.S. Supreme Court believes Wong Kim Art [sic: Ark?] was wrongly decided. So until it is overruled or abrogated, it remains binding law, notwithstanding any individual’s personal disagreement with it.”

    So, despite the indisputable fact of, let us call it “Gray’s Anomaly” — misstating what Congress actually did in 1795, by repealing the “natural born” modifier in the 1790 Naturalization Act — because we have been accepting and lauding a flawed Supreme Court majority opinion since 1898, we should continue doing the same thing into the indefinite future. Pointing out, much less correcting, the manifest error is unthinkable. It is that “stare decisis” thing.

    This is nonsense elevated to an art form. And yet it typifies the “logic” propelling many courts and liberals to even greater heights of irrationality and “binding law.” Move along…, nothing to see here.

    1. Belief that the majority in Wong Kim Ark made a mistake does not make it so. And there’s no indication that a majority of the current U.S. Supreme Court believes Wong Kim Ark was wrongly decided.

      Regardless, state decisis and binding law are hallmarks of the United States’ commitment to being a nation of laws. Anyone may disagree with a ruling and endeavor to help overrule or abrogate it. But anyone who pretends any ruling lacks the force of law or somehow isn’t binding does so at their own peril.

      Because a dissenter’s belief and a court’s ruling are not in equipoise.

      None of which is relevant to Gielow’s plea for election officials to intervene, as the costs would outweigh any possible benefit.

  2. From Joseph DeMaio in response to Rudy Lee’s 12:53 a.m. comment below:
    ———————————————-
    “So it is unsurprising that no eligibility challenge has relied or even favorably cited Federalist No. 68 or Vattel.

    Rather, the eligibility challenges decided on the merits all cite Ankeny or Wong Kim Ark.”

    When referring to “Wong Kim Ark,” upon which the Ankeny and many other “eligibility” decisions rely, does the commenter mean the 6-2 plurality decision of the Supreme Court decided March 28, 1898? The one authored by Associate Justice Horace Gray, with Chief Justice Fuller and Associate Justice Harlan dissenting? The one addressing solely the question of citizenship under the 14th Amendment and not whether such a “citizen” would additionally be a “natural born citizen?”  

    The same decision where Justice Gray carelessly (surely not intentionally…) misrepresented congressional action on the “natural born citizen” issue, discussed here (“In the Same Words?” – The Post & Email (thepostemail.com)? Is that the case to which the commenter is referring?

    By erroneously (surely not intentionally…) asserting as a core component for his “anyone-born-here-is-a-citizen” decision the purported, but wrong, fact that in 1795, Congress “re-enacted” the 1790 Uniform Naturalization Act “in the same words,” excepting only a change entirely unrelated to the “considered as natural-born citizens” language from the 1790 Act, Justice Gray misinforms readers of what Congress actually did.

    In reality, the 1795 Act repealed and removed the “considered as natural born citizens” language from the 1790 Act. Stated otherwise, the 1795 act did not — repeat: not — re-enact “in the same words” that language, seemingly in clear recognition and confession that it had “goofed” in 1790. Congress had erred by including in a statute a term which was inconsistent with the Constitution and improperly attempted by statute to amend Art. 2, § 1, Cl. 5, the presidential “Eligibility Clause.” Congress corrected its error in 1795.

    Thus, Ankeny’s (and other courts’) reliance on Wong Kim Ark and its “misinformation” is similarly flawed.  We await the commenter’s retort…, likely something along the lines of “it doesn’t matter.”

    Side out.

    1. Courts’ rulings matter, very much; they have the force of law.

      Anyone is free to disagree with a ruling’s analysis and conclusion, but such disagreement ultimately doesn’t matter.

      Because the United States is governed by the rule of law, and people who ignore rulings they don’t like do so at their peril.

      1. From Joseph DeMaio:
        —————————–
        “Anyone is free to disagree with a ruling’s analysis and conclusion, but such disagreement ultimately doesn’t matter.

        Because the United States is governed by the rule of law, and people who ignore rulings they don’t like do so at their peril.”

        If disagreement with a court’s ruling, analysis and conclusion “ultimately doesn’t matter,” the Supreme Court’s decision in the Dred Scott case might still be the law of the land. The Supreme Court, contrary to some folks’ belief, is not infallible. If the Court makes a mistake, it should either correct the mistake itself or at least alert readers that the mistake has been made. That is why corrective “errata” orders exist.

        The Court has done none of those things with regard to Justice Gray’s “mistake” in the Wong Kim Ark case. These omissions have thereby allowed other courts (e.g., the Iowa Court of Appeals in Ankeny) to rely and extrapolate upon a flawed WKA decision…, perhaps not fatally flawed, but significantly flawed nonetheless.  

        Finally, when your humble servant makes a mistake, faithful P&E readers are owed an apology and correction of the mistake. Mea culpa.  

        Specifically, in a prior response to a comment, your servant erroneously characterized the WKA decision as being a “plurality” decision when, in fact, it is instead a “split” decision.  

        Since five Justices in addition to Justice Gray either (a) missed his “error” or (b) concurred in its faulty assertion that the 1795 Naturalization Act re-enacted “in the same words” the 1790 Act, with one exception unrelated to the “natural born citizen” issue, and only two other Justices — Chief Justice Melville Fuller and Associate Justice John Harlan — dissented, the decision does not fit the generally-accepted definition of a “plurality” decision. Associate Justice Joseph McKenna did not participate since he was not a member of the Court when the matter was argued.  

        Against this backdrop, as a “split” decision — with a cogent dissent authored by Chief Justice Fuller and concurred in by Associate Justice Harlan — the case still stands only for its holding that Wong Kim Ark was a U.S. citizen under the 14th Amendment. It does not stand for the flawed and extrapolated ipse dixit (“it is so because I say it is so”) proposition that he was, in addition, a “natural born Citizen” under Art. 2, § 1, Cl. 5 of the Constitution…, no matter what the Ankeny court or interested P&E commenters believe.

        1. The error in Dred Scott ultimately was corrected by amendments to the U.S. Constitution. By analogy, if anyone believes Wong Kim Ark was wrongly decided, they are free to pursue a constitutional amendment to change the law as it presently exists.

          But there’s no indication a majority of the current U.S. Supreme Court believes Wong Kim Art was wrongly decided. So until it is overruled or abrogated, it remains binding law, notwithstanding any individual’s personal disagreement with it.

          The same is true for Ankeny: Until it is overruled or abrogated, it also remains good law from an actual court, notwithstanding any individual’s personal disagreement with it. Its interpretation of Wong Kim Ark remains uncontradicted by any other court.

          And, until overruled or abrogated, an individual’s personal disagreement with Ankeny ultimately doesn’t matter.

  3. https://www.a2guardians.com/post/sole-allegiance-required >>> a “natural born Citizen” is “from the tribe” = born on U.S. soil to U.S. citizen-parents at time of birth; Obama and Omar are not sole-U.S.-allegiance-citizens and every U.S. official who denies this is a criminal worthy of removal from office for willful malfeasance >>> https://www.youtube.com/watch?v=rXFwqUi3zR0&feature=youtu.be >>> https://www.youtube.com/watch?v=z20DMqLFVk8

    https://www.thepostemail.com/2022/06/25/case-asking-foreign-born-congressional-candidates-to-prove-u-s-citizenship-pending/

    DEFENDING PIRACY OF U.S. CITIZENSHIP UNDER THE VEIL OF PRIVACY OF U.S. CITIZENSHIP

    Whenever you and I go through security before boarding a commercial airliner, we are all considered terrorists until proven to be innocent passengers.

    It did not used to be that way, but it must be that way today.

    Similarly, because today’s U.S. Government is a fugitive of too many of our nation’s laws, for today’s national security, any person seeking to be a U.S. President-VP-Senator-Representative must now be considered as being an anti-American foreign-citizen until proven to be an indisputable and verifiable sole natural or sole naturalized U.S. citizen.

    FACT: Since 1789 the U.S. Constitution is the singular supreme law of the land; our U.S. Government and all its legal U.S. citizens can either follow or amend it, that’s it.

    FACT: The U.S. Constitution MANDATES that all U.S. Presidents and VPs must be a sole “natural born [U.S.] Citizen” and all U.S. Senators and Representatives must be a sole “[U.S.] citizen” with none of those highest offices Constitutionally occupied by any sole foreign-citizen or any “dual citizen”.

    In spite of these Constitutional facts, our nation’s candidate/voter/election network has devolved into a free-for-all with little to no firm U.S. “citizenship enforcement”.

    What to do?

    Today, right now, We the People on Main Street USA must now defend and only accept indisputable and verifiable sole natural or sole naturalized U.S. citizens as our U.S. Presidents-VPs-Senators-Representatives BECAUSE OUR NATION’S SECRETARIES OF STATE AND ATTORNEYS GENERAL AND GOVERNORS, ET AL, ENTRUSTED WITH THIS U.S. CONSTITUTIONAL “CITIZENSHIP ENFORCEMENT” DUTY, CAN NO LONGER BE FAITHFULLY AND HONORABLY RELIED UPON TO DO THIS DUTY. Recent observations of reality prove this national deficiency.

    Therefore, in the case of Somalia-born Ilhan Omar and Jamaica-born Don Samuels and Canada-born Rafael Cruz, and all other foreign-born and dual citizen candidates for U.S. President-VP-Senator-Representative, each MUST NOW BE CONSIDERED CONSTITUTIONALLY-INELIGIBLE FOREIGN-CITIZEN CANDIDATES-INCUMBENTS-EX-INCUMBENTS UNTIL AFTER EACH PUBLISHES THEIR INDISPUTABLE AND VERIFIABLE SOLE NATURAL OR SOLE NATURALIZED CONSTITUTIONALLY-ELIGIBLE U.S. CITIZENSHIP FOR THE U.S. OFFICE THEY SEEK OR OCCUPY OR VACATED AND, AND, AND WE THE PEOPLE ON MAIN STREET USA, you and me, MUST NOW NO LONGER OBEY OR SUPPORT OR DONATE OR DEBATE OR RECOGNIZE ANY SUCH FOREIGN-BORN OFFICE-SEEKER OR ANY SUCH OFFICE-HOLDER OR ANY SUCH OFFICE-RETIREE UNTIL AFTER EACH PUBLISHES THEIR INDISPUTABLE AND VERIFIABLE SOLE NATURAL OR SOLE NATURALIZED CONSTITUTIONALLY-ELIGIBLE U.S. CITIZENSHIP.

    What a mess. NO MORE “CATCH AND RELEASE” U.S. “CITIZENSHIP ENFORCEMENT”!

    “Plagiarist President” Biden who I believe is taking credit for Trump’s rightful second presidential term of office, invites and pampers hordes of foreign-citizens to invade our nation! “The Whoreable” Nancy Pelosi and Biden and Hillary co-forged “Osama” Obama’s presidential nomination papers on 08-28-08! And right now Minnesota is preparing to print off its primary election absentee ballots that include Ilhan Omar and Don Samuels names thereon with sole reliance upon non-vetted and non-secure “honor system” proof of their U.S. Constitutional-eligibility via their perfunctory-submitted “Affidavit of Candidacy”!

    WHO WILL SURRENDER THEIR MIND TO SUCH FARCE MAJEURE?!

    TO all legal U.S. citizens: Are YOU still content to remain an illicit complicit co-criminal along with criminal Constitutionally-ineligible foreign-citizen and dual-citizen candidates-incumbents-ex-incumbents invading the highest offices of YOUR nation? Are YOU awake or a woke?

    1. No eligibility challenge to any candidate ever has ruled a natural born citizen must be born in the United to two U.S. citizen parents.

      The U.S. Constitution doesn’t prohibit dual citizenship, or prohibit those with dual citizenship from serving in an elected office.

      Kern’s lawsuit challenging the eligibility of two Minnesota candidates during the primaries was dismissed months ago.

      1. NBC only applies to President and VP. And if that were not so why were there several attempts in congress (all failed) to change that requirement. You will be reminded qualifications for Senate and House need to be citizens but not NBC.

  4. Is the U.S. Supreme Court the seat of the Deep State? Judging from the Court’s failure to take up and rule on one of our country’s biggest problems (actually a national security issue as we’ve already seen with the Obama fiasco/treason), I wouldn’t rule it out! Then again, I’m just an ordinary, tax-paying, law-abiding, military-veteran, retired-law enforcement officer and American citizen with a real birth certificate. I have no “standing.” Anything I might have to say to the High Court, I’m certain, would have no “merit.” Also, to add insult to injury, I, like millions of other Americans, have been disenfranchised! As a motto engraved on the walls at the entrance of the CIA says: “And ye shall know the truth and the truth shall set you free.” Wanna bet?

  5. Thank you, excellent letter. I believe no decision will be made which disqualifies anyone in office now, or previously in office. Revealing Obama was never eligible would reveal a crime too big to prosecute, which gave America’s government and her military to her enemies, and that is why both political parties fear Obama’s nemesis, Donald Trump being president again, not the only reason, but the most significant one. I fear they will do anything to prevent Donald Trump from serving a second term as President…….All complicit in the Obama Fraud and its still on-going cover-up are protecting themselves……Regarding the Supreme Court, John Roberts swore-in the ineligible Obama several times and the likelihood of other courts or judges saying the Chief Justice of America’s highest court, the Supreme Court, was wrong is nil……

    I hope I am wrong………….

    1. Election officials occasionally remove facially invalid candidates. The California Secretary of State, for example, removed Eldridge Cleaver and Peta Lindsay from ballots because they were both too young.

      But, if the past is prologue, no one is going to disqualified from any ballot for these incorrect beliefs about the meaning of natural born citizen. No election official is going to seek judicial “clarification” that these wrong beliefs are wrong.

  6. Answers already have been given: Courts already ruled, minor exceptions aside, those born in the United States are natural born citizens.

    Courts also already ruled Cruz is a natural born citizen because his mother was a U.S. citizen at his birth. The U.S. Supreme Court already declined to hear a challenge against his eligibility.

    There’s no indication that any state is going to seek a judicial ruling to satisfy Gielow’s desires, especially when the courts already have provided guidance. But many states allow voters to challenge a candidate’s eligibility; perhaps Gielow could file a challenge.

    1. From Joseph DeMaio:
      ———————–
      “Answers already have been given: Courts already ruled, minor exceptions aside, those born in the United States are natural born citizens.”

      So, if Osama bin Laden had been born at, say, the Kapi’olani Medical and Gynecological Hospital in Honolulu to his Saudi parents while they were on holiday there in 1957, he would have been eligible to the presidency? Is that a result which the Founders contemplated, much less intended? Seriously?

      The decision in Ankeny was wrong when it was decided and remains wrong today. And the decisions in other cases denying appellate review by certiorari because of a purported lack of “litigant standing” are not — repeat, not — decisions on the merits. Moreover, recall that once, the Supreme Court ruled that someone named Dred Scott was not a “person” or “citizen,” but instead was merely “property.” That decision was wrong when it was decided and remained wrong until the Civil War ensued and the 13th and 14th Amendments abrogated (not overruled) it. If the Supreme Court continues to “evade” deciding the “natural born Citizen” question, the issue will continue to fester. Perhaps a constitutional amendment would help resolve the matter. 

      Finally, as the commenter knows, or should know, the Supreme Court in Minor v. Happersett noted that the Founders understood, with never a doubt, that a “natural born citizen” was a person born here to two parents who were already U.S. citizens owing exclusive allegiance to this country. Osama bin Laden would not have satisfied that criterion. 

      1. You would need a seance with the Framers to discuss the beliefs about bin Laden.

        Hawaii was not a state in 1957, but Goldwater wasn’t born in a U.S. state either, and there was little doubt that he was eligible.

        No court believes Ankeny wrongly decided. Rather, several courts agreed with its reasoning and cited it with approval.

        Pennsylvania courts ruled on the merits that Cruz was a natural born citizen. And the U.S. Supreme Court, without dissent, denied certiorari from that merit-based decision.

        That the U.S. Supreme Court got it wrong in Dred Scott doesn’t invalidate Ankeny or any other court ruling. To believe it did would allow everyone to have their own cafeteria-style approach to which laws are binding.

        Minor’s proposition that there’s no doubt that someone born in the United States to two U.S. citizen parents is a natural born citizen is rather lazy thinking because literally no one ever doubted such a person would be a natural born citizen.

        A constitutional amendment is the correct method to change the law to your suiting. Robert Laity can update you on his efforts to do just that.

        1. From Joseph DeMaio:
          —————————–
          “You would need a seance with the Framers to discuss the beliefs about bin Laden.”

          Actually, prior periodic channelings of the Founders have confirmed their reliance on § 212 of de Vattel’s Law of Nations. But instead of a “seance with the Framers to discuss the [sic: their?] beliefs about bin Laden…,” how about we just take a look at Federalist 68 and Alexander Hamilton’s views on the potential for bin Laden or someone like him being deemed even eligible to the presidency?

          There, Hamilton admonished that “every practicable obstacle should be opposed to cabal, intrigue and corruption … [and that] these most deadly adversaries of republican government … [would come] … chiefly from the desire in foreign powers to gain an improper ascendant in our councils.”

          Given that admonition, no seance is needed…, move along…, nothing to see here. As one of the “Framers” of the Constitution, Hamilton’s views on a potential bin Laden eligibility to the presidency would seem to have been clearly “settled” along the lines of a hard “no.”

          And, BTW, in 1957, Hawaii was an incorporated territory of the United States, so for de Vattel § 212 purposes, it constituted a part of the country called “the United States of America.”  

          Oh, and Happy Thanksgiving! 

        2. Try rubbing your crystal ball harder, as Federalist No. 68 says nothing about the natural born citizen clause or bin Laden.

          So it is unsurprising that no eligiblity challenge has relied or even favorably cited Federalist No. 68 or Vattel.

          Rather, the eligibility challenges decided on the merits all cite Ankeny or Wong Kim Ark.

    2. Why would any court rule who is a natural born Citizen if it is not written as such in any existing law?

      It seems that these judges are pulling words out of thin air.

      1. Courts ruled on who is a natural born citizen because eligibility challenges were filed against candidates for offices that can be filed only by natural born citizens. In other words, judges were doing their job: applying the law to resolve disputes.

        For example, in Ankeny, the court cited Wong Kim Ark. And in Wong Kim Ark, the U.S. Supreme Court extensively examined laws and decisions from a wide variety of sources. Which is how the law in the United States has been informed since it’s inception.