by Joseph DeMaio, ©2023
(Mar. 22, 2023) — The recent comments above by one “Lucius Boggs” in response to the article, “The Role of States and ‘POPE’s’ in Presidential Eligibility Determinations” are many and lengthy, thus necessitating longer than normal responses, below.
Monday, March 20, 2023 at 1:33 PM
Boggs: The author appears to ignore the current case law.
Author’s Response: “Current case law” is not the same as precedential Supreme Court case decisions.
Boggs: A number of state courts have already ruled on this question and they all appear to read US v. Wong Kim Ark (1898) as authoritative if not binding precedent.
Response: The commenter appears to ignore that for that very reason, the POPE proposal makes eminently rational sense, since WKA did not involve the “natural born citizen” issue. Moreover, it must be recalled that once, the decisions in Scott v. Sandford and Roe v. Wade were claimed to be both authoritative and binding precedent…, and look what happened to them.
Boggs: Would any legislative attempt to override these decisions be ruled unconstitutional?
Response: Recalling that WKA by its own terms confined its holding to analysis of the 14th Amendment’s application to determine whether the person was a “citizen,” all of the rest of the opinion discussing a “natural born citizen” is “dicta, pure and simple.” Moreover, the commenter conspicuously fails to identify the provision of the Constitution, specifically, which would purportedly be violated.
Boggs: In a previous comment I pointed out that even Professor Titus (a two-citizen parent advocate) recognized that Wong Kim Ark (not Minor) is the precedent which controls this issue.
Response: Because Justice Gray’s WKA opinion is fundamentally flawed – see “In the Same Words?” here – this is yet another compelling reason to deploy the POPE option.
Boggs: In his amicus brief in Rudy v Lee (2014-1056) Professor Titus does not rely on Minor v Happersett as a precedent but rather points out that the choice is between Justice Gray’s opinion or Chief Justice Fuller’s dissent in Wong Kim Ark. It is clear from his argument that he recognized that even though Justice Gray did not specifically declare Wong a natural born citizen the effect of the decision made him eligible to be president.
Response: The commenter misleads by failing to note that the amicus brief filed by Professor Titus did not “recognize” that “the effect of the [WKA] decision made Wong Kim Ark eligible to be president” or that WKA “controls this issue.” That claim is a festooning of what Professor Titus actually argued and constitutes an unsubstantiated extrapolation of his actual amicus argument. It is worthy of analogizing to selected “products” of the Congressional Research Service.
The amicus argument was solely that WKA, in addressing the 14th Amendment, Justice Gray’s (flawed) majority opinion clarified the statement made in Minor v. Happersett regarding the “citizen” status of persons born to aliens here, as to which “there had been doubts.” Indeed, the amicus brief noted that Justice Fuller’s dissent was “cogent” (amicus brief at 16).
Finally, the commenter omits the fact that the amicus brief argued (correctly, in your humble servant’s view) that certiorari should be granted to address the constitutional eligibility of Barack Hussein Obama, Jr. The lower trial court had dismissed (with the dismissal affirmed) Mr. Rudy’s claim that Mr. Obama was not a natural born Citizen on the grounds that the matter constituted a “political question” and was thus “non-justiciable.”
The matter addressed in the amicus brief, therefore, was not directly aimed at the merits of the natural born Citizen issue. Instead, it focused on the abstract jurisdiction of the Supreme Court and urged the granting of Mr. Rudy’s petition for certiorari. Thus, if the amicus brief were a court opinion, its comments about WKA and Minor would be deemed obiter dictum. Naturally, the Supreme Court denied certiorari…, you expected something else?
Professor Titus amicus brief (Rudy v Lee)
http://cldef.org/briefs/Rudy%20v%20Lee%20USJF%20Amicus%20Brief.pdf
Supreme Court docket (Rudy v Lee)
https://www.supremecourt.gov/search.aspx?filename=/docketfiles/14-36.htm
There are two cases that should be read as both influenced Justice Gray’s opinion and are cited by him.
Lynch v Clarke 1844 New York Chancery Reports
“6. Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.”
Response: Nowhere in the records of the U.S. Supreme Court will one find the name of Chancellor Nathan Sanford, author of the opinion in Lynch, as being included among the various Justices of the Supreme Court.
Opinions of judges from courts inferior to the U.S. Supreme Court may be “authoritative” within their local jurisdictions and even “persuasive” as a general matter. But they are not pronouncements which become a part of U.S. Supreme Court jurisprudence and, tangentially, the “supreme law of the land.”
Accordingly, Lynch – like Ankeny v. Governor of the State of Indiana – articulates noting more than the opinion(s) of judges of inferior courts of appeal. This only underscores the allure of POPE laws: at the “end of the day,” the objective is to force the nbC issue into the Supreme Court, if not by a private litigant – where standing issues would arise – then under Art. 3, § 2, Cl. 5.
That provision mandates that “[t]he judicial Power [of the Supreme Court] shall extend… to Controversies between two or more States….” (Emphasis added). The Founders understood the difference between the words “shall” and “may,” and selected the former for use in the Constitution.
Boggs: https://cite.case.law/pdf/2163616/Lynch%20v.%20Clarke,%201%20Sand.%20Ch.%20583%20(1844).pdf
In re look Tin Sing 21 F. 905 (D.Cal. 1884)
Citing Lynch v Clarke – “It was held that she was a citizen of the United States. After an exhaustive examination of the law, the vice-chancellor said that he entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural-born citizen; and added that this was the general understanding of the legal profession, and the universal impression of the public mind.”
https://casetext.com/case/in-re-look-tin-sing
The author of the opinion in Look Tin Sing with [sic: was?] Justice Stephan [sic: Stephen] Field who was also on the Court for the Minor v Happersett decision.
Response: As to the decision in In re Look Tin Sing, Judge Field – while parroting as a Ninth Circuit Court of Appeals Judge portions of the opinion of Chancellor Sanford in Lynch – joined, as a Supreme Court Justice, the unanimous decision in Minor.
The Minor decision, of course, articulates the proposition that the Founders knew well that a natural born citizen was a person born here to two parents who were already citizens. It also noted that there had been doubts about whether similarly, persons born here to foreigners were natural born citizens…, but also that “no doubts” existed as to those born here to citizen parents. Instead of dissenting, as might have been expected given his prior opinion in In re Look Tin Sing, Justice Field joined in the unanimous Minor decision, suggesting that he understood — unlike some — the difference between a “citizen” and a “natural born citizen.”
Side out.
MAKE-THEM-BELIEVE nbC MAKE BELIEVE (aka “man-made hocus-pocus-focus”) vs natural observations of reality (aka “five natural common senses”)
All the “legal history” and “legal interpretation” and “natural born Citizen (nbC) theories” since 2000 pretty much distill down to “engineered confusion” of on-going attorney arguments to no settled conclusion…so let’s now run to some other arguing attorneys, called “The U.S. Supreme Court”, for a final, final, final law-of-the-land split-nbC-decision, right?
By evil design, beginning officially on 08-28-08 ( “The DNC-Blue Coup”: https://www.youtube.com/watch?v=rXFwqUi3zR0&feature=youtu.be ), U.S. “attorney-criminals” assisted Traitor-Speaker Pelosi in relying on lying to evade John Jay’s invention/intention of “natural born Citizen” 1787- TODAY.
So, let’s, instead, climb out to this ongoing legal-rabbit-hole-by-design and simply use the same five natural senses that all humans are designed with, being, sight-sound-smell-taste-touch, to assemble a sort of “jury of humanity” to FOCUS NATURALLY on this nbC topic, OK?
What does this natural observation of reality reveal to all humanity’s common senses: https://www.scribd.com/doc/48856102/All-U-S-Presidents-Eligibility-Grandfather-Clause-Natural-Born-Citizen-Clause-or-Seated-by-Fraud
ANSWER: all previous U.S. generations, from President Washington in 1789 until 08-28-08, EVIDENTLY understood John Jay’s “natural born Citizen” clause to mean “each U.S. President (and each U.S. Vice President via a Constitutional Amendment in 1804) is born within a sole-USA jurisdiction to sole-U.S.-citizen-allegiance-parents “from the tribe”.
So, it seems, all efforts by recent attorney-criminals to give an nbC-pass to Obama, and “Canada Cruz”, et al, is all an engineered hocus-pocus-focus intended to plant doubt in the minds of the masses, while, quite simply, natural observations of precedential-presidential-U.S.-humans 1789- 08-28-08 reveals to all common senses of humanity that John Jay’s “natural born Citizen” cause-clause was EVIDENTLY intended to select humans “of the U.S.-citizen people, by the U.S.-citizen people, for the U.S.-citizen people with no inherited parental-foreign-citizenships-allegiances-sympathies”.
Hocus-pocus-nbC-focus or natural-nbC-focus, that is the question.
After several attempts to post a fuller response were defeated by the blog’s moderation policy, here is one only highlighting the author’s errors.
Assistant Vice-Chancellor Lewis H. Sanford wrote the Lynch v Clarke opinion not Chancellor Nathan Sanford.
In re Look Tin Sing (1884) came after Minor v. Happersett (1875) not prior to.
I would suggest that “Joseph DeMaio” read Justice Curtis’ dissent in Dred Scott (paying attention to his statement on “natural-born citizen”) then read Justice Field’s dissent in the Slaughterhouse Cases (paying attention to his statement on Justice Curtis’ dissent). Next read Justice Miller’s opinion in the Slaughterhouse Cases (paying attention to his statement on “subject to the jurisdiction”) and then reading Justice Field’s opinion In re Look Tin Sing (paying attention to his statement on “subject to the jurisdiction”).
After finishing those, maybe he could answer whether he thinks Justice Field might bes one of the “authorities” who “include as citizens children born within the jurisdiction without reference to the citizenship of their parents.”
That might explain why justice Field did not feel the need to dissent to an opinion that wasn’t even going to take up the issue.
To Boggs:
The Editor of this newspaper, Sharon Rondeau, does a difficult but excellent job. As you should know by now, this is a moderated forum for an online newspaper.
In my opinion, in my reading of your prior comments here, your prior attempts were likely rejected as tedious misleading, repetitious, legal type misinformation and/or other typical misinformation by omission OBOT tripe. But as you have seen if you are succinct and focused with your attempt at legal citations directed at the article’s author, as with your comment above, you get through.
For the life of me, I cannot understand how persons of your mindset as seen through your comments here (if you truly believe what you suggesting in your writings), that you can believe that the founders and framers of our founding documents and the U.S. Constitution would have intended to allow a person born with foreign influence and citizenship on them via dual or triple Citizenship at birth and allegiance at birth to more than one country to be allowed Constitutionally to serve as the Commander in Chief of our military as the President. And you surely are aware that abrogation of the original intent meaning “natural born Citizen” clause in our U.S. Constitution has been under attack for many decades since it restricts who can be the President and Commander in Chief of our military. You can see some of the attempts here: http://www.art2superpac.com/issues.html
John Jay’s (who became the first Chief Justice of the U.S. Supreme Court) in his letter in the summer of 1787 sent to the President of the Constitutional Convention, George Washington, clearly show that the founders and framers did not wish such a person, one born with foreign influence by birth to ever be allowed to be the Commander in Chief and thus the “natural born Citizen” (NBC) clause was suggested by Jay and accepted by Washington and put into the U.S. Constitution to prevent it.
And as we should know, simply by reading Article II Section 1 Clause 5 of our U.S. Constitution, an exception had to be made and was made and put into that NBC term of the presidential eligibility clause for the existing founding revolutionary generation since they were all born with foreign influence on them, which they threw off with the revolution and founded the new nation and in 1776 became the original Citizens. Those original Citizens were “not natural born Citizens” (NBC) but just Citizens. Adjectives mean something. The children born in the USA of these original Citizens of the USA would be the first “natural born” Citizens of the USA. Those adjectives mean something. That is the Natural Law definition of a “natural born Citizen”. A person born in the country to two parents who were a Citizen of the country when their child was born.
For those new to Natural Law, see Vattel’s legal treatise on Principles of Natural Law: https://lonang.com/library/reference/vattel-law-of-nations/vatt-119/
Lucius Boggs, in my opinion, you are either a true Marxist Progressive ideologue manipulating language to undermine the Constitution or a paid operative with some far-left PR operations tasked with doing what you do here and elsewhere.
I believe you don’t care what the founders and framers intended. You are simply here to spread misinformation and mis-educate any newbie readers here on the topic of being a “natural born Citizen” of the United States in order to continue the agenda of both major national political parties and major media goals to abrogate that national security term in Article II Section 1 Clause 5, the presidential eligibility clause, of our U.S. Constitution to be able to run candidates of their choice and ignore the NBC term.
For any newbies readers of this newspaper here read this white paper for the true story of the Who, What, When, Where, WHY, and How the “natural born Citizen” term was put in the presidential eligibility clause of our U.S. Constitution, i.e., for national security reasons for this most powerful high office which is the one that commands our military forces: http://www.kerchner.com/protectourliberty/The-Who-What-When-Where-Why-and-How-of-NBC-Term-in-Constitution.pdf
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
“Those original Citizens were “not natural born Citizens” (NBC) but just Citizens.”
And yet Justice William Johnson in his dissent in Shanks v Dupont (1833) wrote that Anne Shanks who was born in the South Carolina Colony, became a natural born citizen of South Carolina on July 4th 1776. Justice Johnson was a former South Carolina legislator and judge on South Carolina’s highest court and was taught the law by Charles Cotesworth Pinckney, a Framer of the Constitution.
Obviously the two-citizen parent theory falls apart if the Founders considered themselves to be natural born citizens.
So here is a challenge for you.
Explain the following:
In re Wong Kim Ark (1896) Judge Morrow of the Northern District of California used the term natural born citizen twice. Both times in citations from Justice Field’s opinion from In re Look Tin Sing. Both times Justice Field was citing from Lynch v. Clarke (1844). Judge Morrow finished his opinion saying, “From the law as announced and the facts as stipulated, I am of opinion that Wong Kim Ark is a citizen of the United States within the meaning of the citizenship clause of the fourteenth amendment.” [Note he doesn’t say natural born citizen]
The US Government in their appellant brief wrote, “The question presented by this appeal may be thus stated: Is a person born within the United States of alien parents domiciled therein a citizen thereof by the fact of his birth? The appellant maintains the negative, and in that behalf assigns as error the ruling of the district court that respondent is a natural-born citizen …”
Now the challenge;
Why did the Government say that Judge Morrow ruled Wong a natural born citizen when Judge Morrow did not use that term? Try to answer without relying on the weak – they made a mistake excuse.
From the author:
———————-
The latest comment (3/25/23 @ 12:55 AM) from L. Boggs initially questions CDR Kerchner’s accurate response that “Those original Citizens were ‘not natural born Citizens’ (NBC) but just Citizens.” Boggs then cites the dissenting opinion (usually not controlling precedent) of Justice Johnson in Shanks v. DuPont, 28 U.S. 242 (1830) (sic) – decided in 1830, not 1833 – for his statement that Anne Shanks was, from July 4, 1776, “a natural born citizen of South Carolina.”
Boggs neglects to note that, by an act of the South Carolina legislature passed in 1712, well prior to the Revolutionary War, “the common law of Great Britain was incorporated into the jurisprudence of South Carolina.” (Emphasis added) See Johnson dissent, 28 U.S. at 252.
Since that act would have adopted the “natural born subject” (Emphasis added) principles of British common law into South Carolina law prior to July 4, 1776, it is far less than surprising that Justice Johnson would characterize Mrs. DuPont as being a “natural born citizen” under South Carolina law, albeit on the mistaken assumption that from and after July 4, 1776, colonial “natural born subjects” magically metamorphosed into “natural born citizens” within the meaning of Art. 2, § 1, Cl. 5 of the Constitution as opposed to the laws of South Carolina. They did not.
Consistent with what CDR Kerchner asserted, they became a U.S. “citizen” via the Declaration of Independence – a naturalization law – rather than a “natural born citizen” under the Constitution. Recall as well that those delegates to the Constitutional Convention and others who may have been born “beyond sea” or in a foreign country also had foreign (i.e., non-U.S. citizen) parents, because prior to July 4, 1776, there was no formal or internationally independent “United States.” Thus, their parents were “foreigners” vis à vis the yet-to-be-born United States.
But when the Declaration of Independence was signed on July 4, 1776, all those who had been born within the jurisdiction of a “state” (e.g., South Carolina) within erstwhile British America became, by operation of law, a naturalized U.S. citizen, but not a U.S. nbC.
As noted by historian and constitutional scholar Edwin S. Corwin in his tome, “The President: Office and Powers, 1787 – 1984” (5th Revised Ed. 1984), at 38: “The fact is that nobody old enough to become President in 1787, or for a long time afterward, was a ‘natural born citizen’ of the United States; all, like the men just mentioned [e.g., Alexander Hamilton], had been born British subjects, and had become American citizens in consequence of the casting off of allegiance to the British monarch by the Declaration of Independence [in 1776].” (Emphasis Corwin’s)
Justice Johnson, author of Shanks, having served, according to Boggs, as a South Carolina legislator and having been tutored by Founder Charles Pinckney, should have known better.
Boggs next focuses on the U.S. District Court decision in the lower District Court Wong Kim Ark case. While Boggs does not supply the citation for the case, it is found at 71 F. 382 (N.D. Cal. 1896) (In re Wong Kim Ark, 71 F. 382 | Casetext Search + Citator). After suggesting a circuitous journey through a variety of cases, Boggs asks: “Why did the Government say [in its appellate brief on appeal] that Judge Morrow ruled Wong a natural born citizen when Judge Morrow did not use that term? Try to answer without relying on the weak – [sic] they [sic: it?] made a mistake excuse.”
If the pseudo-rational “they made a mistake” reason is, from Boggs’ perspective, “off the table,” then we would still have Scott v. Sandford as controlling authority in this nation. On the other hand, even assuming that a likely “excuse” cannot be considered, the only remaining “non-negligent” alternative conclusion is: The Government’s brief intentionally misrepresented the actual facts. This, of course, would be par for the course when dealing with the federal government and its various tentacles, including, for example, the Congressional Research Service (Like it Never Happened – The Post & Email (thepostemail.com)) and, naturally, all departments of the Executive Branch, from the Goof at 1600 on down.
If Boggs has a citation to the Government’s appellate brief in the Wong Kim Ark case and would share it, a more comprehensive response might be composed. But until that occurs, the foregoing is the best your humble servant can offer.
Excellent legal and constitutional analysis and rebuttal of the cut and pasted re-posted pseudo-definitive and pseudo-authoritative comment made by Boggs who imo is in the same league and type of legal writers of the first secret CRS Memo regarding the “natural born Citizen” issue which was sent by a Congressional Staffer to Attorney Mario Apuzzo to reveal to the world, and which was shared with the world on his blog, and the follow-on ones. See: https://www.scribd.com/doc/41131059/CRS-Congressional-Internal-Memo-What-to-Tell-Your-Constituents-Regarding-Obama-Eligibility-QuestionsDeceiving by misinformation and omissions of other relevant information. Bravo Zulu once again to Joseph DeMaio.
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org