by Joseph DeMaio, ©2024
(Jan. 25, 2024) — The “Obot Neural Paralysis Syndrome” (for brevity, “ONPS”) continues to spread, despite all efforts to bring it to ground. Forget about Wuhan and the Covid-19 lab leak. The ONPS continues to attack functioning rational brain cells and neural synapses when it comes to the “natural born Citizen” (“nbC”) presidential eligibility issue.
Recently, The P&E’s intrepid editor penned a post addressing the questionable nbC status of Nikki Haley. The post cited the work of one Paul Ingrassia, who has offered useful support for the proposition that Haley may, in fact, be constitutionally-ineligible.
The Editor’s post drew a comment from one Joe Leland addressing language she cited from the Supreme Court’s split 6-2 (Justice McKenna recusing) decision in United States v. Wong Kim Ark, (“WKA”) authored by Associate Justice Horace Gray, with him in turn quoting from another prior Supreme Court decision, Minor v. Happersett (“Minor”).
The Leland comment sought to “explain” Justice Gray’s remarks regarding the decision in Minor. The exercise was undertaken seemingly in an effort to shore up the contention that the language of the quote from Minor does not really mean what it says, at least according, purportedly, to Justice Gray.
Really?
In challenging the reasoning of The P&E Editor in the post addressing the eligibility bona fides of Nikki Haley, commenter Leland claims that Justice Gray “resolved” certain purported “doubts” in the language of Minor. However, apart from whether that claim succeeds, he neglects to note that in the process, Gray created and compounded more serious additional doubts about the factual and legal accuracy – not to mention the precedential value – of his majority opinion in WKA.
Specifically, the commenter persists in relying on the 6-2 split WKA decision in purported proof that it “settled” the nbC issue regarding presidential eligibility. WKA did not; does not; nor will it likely in the future settle the nbC issue, assuming it is not in the meantime overturned or neutered by the Congress.
There are three core reasons for questioning the value of WKA, none of which commenter Leland addresses in his latest post, much less explains.
First, as confirmed at the outset in ¶ 3 of Justice Gray’s majority opinion (yes, Virginia, there is a cogent dissent casting substantial doubt on the reasoning of Gray’s opinion), the sole question being presented was whether Wong Kim Ark was a 14th Amendment “citizen” of the United States. The case did not, in addition, involve whether he or any other person similarly-situated was also an nbC for presidential eligibility purposes. Any contention to the contrary is without solid legal foundation.
Recall that while all nbC’s born here are also 14th Amendment citizens, not all 14th Amendment citizens are nbC’s. Accordingly, the rest of the WKA majority opinion mentioning or discussing cases referencing, directly or tangentially the nbC issue in contexts other than the presidency or Wong Kim Ark’s status as a 14th Amendment “citizen” is, and remains in totality non-binding and non-precedential obiter dictum.
In this regard, as your servant has previously referenced, the Supreme Court has noted that “[d]ictum settles nothing, even in the court that utters it.” (Emphasis added) See Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 351, n. 12 (2005). And, by the way, the tangential discussion of the nbC issue in Minor v. Happersett, quoted by Justice Gray in WKA, says what it says. Period.
Moreover, notwithstanding Justice Gray’s “spin” on the nbC definition in Minor which he quoted in WKA, while arguably itself “dictum,” the Minor Court’s observations regarding the definition of an nbC constitute “judicial dictum” rather than “obiter dictum” and thus carry precedential weight in lower courts. This aspect is discussed here.
Second, the Leland comment ignores the patent blunder – assuming, of course, that it was merely an unintended or negligent act rather than purposeful – where Justice Gray misinforms everyone who might read his majority opinion (at ¶ 42) that the 1790 Naturalization Act, 1 Stat. 103, was “re-enacted, in the same words…,” in 1795. 1 Stat. 103 stated that children born “beyond sea” to U.S. citizen parents were to be “considered” as natural born citizens. That is manifestly wrong and at minimum, pure misinformation.
In reality, in 1795, Congress – likely realizing that it could not by a statute alter the nbC definition the Founders had adopted and engrafted into Art. 2, § 1, Cl. 5 of the Constitution – enacted 1 Stat. 414. That statute repealed the “considered as natural born citizens” language of the prior law. Memo to Justice Gray (actually, his progeny) and his present-day acolytes: “repealed” is not a synonym for “re-enacted, in the same words.” This significant anomaly is addressed here.
Third, and finally, the commenter ignores the flat-out butchering and misrepresentations of the Congressional Research Service (“CRS”) – the purported repository of the “nation’s best thinking” – in addressing the words of the WKA dissenters.
Specifically, in CRS Report R42097-2016, dated Nov. 11, 2016, the CRS author (likely one Jack Maskell, although his name is since redacted) asserts at p. 47, footnote 215:
“Note that the dissent in Wong Kim Ark stated that under the majority’s controlling decision, a child born to alien parents in the United States ‘whether of the Mongolian, Malay or other race, were eligible to the Presidency ….’ 169 U.S. at 715 (Fuller, C.J. and Harlan, J. dissenting).” (Emphasis added)
That is a reprehensible falsehood that eviscerates the CRS claim that it is where the “nation’s best thinking” can be found. Instead, that footnote represents one of the worst examples of linguistic chicanery and deceit since the “Elg Ellipsis” revealed and discussed here.
After relating some of the history of the Constitutional Convention’s discussion of the term “natural born citizen,” here is what Chief Justice Fuller, with Associate Justice Harlan concurring, actually stated in the dissent (see 169 U.S. at 715):
“Considering the circumstances surrounding the framing of the [C]onstitution, I submit that it is unreasonable to conclude that ‘natural-born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.” (Emphasis and bolding added)
Even if one recognizes and accepts that this statement, like the statements in the majority opinion, constituted dictum, the dissent was not parroting or acknowledging as correct what the CRS would have the casual reader believe, i.e., that the majority’s “controlling” holding was that anyone born in the United States, whether “… of the Mongolian, Malay, or other race…” was eligible to the presidency. In fact, the dissent was stating the opposite. And by “casual reader” is meant all 535 members of the Senate and House of Representatives.
On the contrary, the dissent was instead articulating Justices Fuller’s and Harlan’s view that, given the backdrop and “circumstances surrounding the framing of the [C]onstitution…,” it was unreasonable – i.e., wrong – to conclude that the Founders intended that any “citizen” other than a “natural born Citizen,” as contemplated by Emer de Vattel in § 212, Book 1, Ch. 19 of his 1758 Treatise, The Law of Nations, was to be eligible to the presidency.
The CRS Report’s deceptive and false suggestion that the dissenters’ comments as to presidential eligibility, articulated as a general proposition, were the functional equivalent of acknowledging that the majority opinion was a “controlling decision” correctly ruling on the matter is beyond unprincipled. It is deceitful. One is tempted to examine whether 18 U.S.C. § 1001, the federal False Statements Act, might be applied to this CRS “product” coming from the site of the “nation’s best thinking.”
Commenter Leland’s observations typify those of persons with ONPS. And while lamentable, it merely underscores the adage that people believe what they want to believe as opposed to what might otherwise be the empirical truth.
In short, the ONPS disorder continues to impact large segments of the population. While no Fauci-recommended vaccine is yet available, your humble servant suggests in the meantime that those being affected by the disorder – as well as the electorate at large – do as the Geico caveman suggested: “Yeah, next time maybe do a little research.”
Back to basics.
Natural Born Citizen dissected.
A. Natural: adjective
1. existing in or formed by nature (opposed to artificial): e.g. The river was spanned by a natural rock bridge.
2. based on the state or behavior of things in nature; constituted by nature: e.g. Growth is a natural process.
B. Born: adjective
1. Brought into life by birth. e.g. Ted Cruz’s mother gave birth to him in Canada.
2. Brought into existence; created. e.g. A new nation was born with the revolution.
C. Citizen: noun
1. A person owing loyalty to and entitled by birth or naturalization to the protection of a state or nation.
2. A resident of a city or town, especially one entitled to vote and enjoy other privileges there.
Conclusion: No current U.S.A. law or Constitutional Amendment exists that specifically declares that anyone is a natural born Citizen. Why? Congress cannot make or deem an event (citizen at birth) through positive man-made law that which is natural, as in natural born Citizen – the natural act of being born in the country to two (2) parents who already are citizens of that country. Congress can only make or deem STATUTORY (through positive man-made laws) U.S. citizens. A STATUTORY U.S. citizen is not the same as a natural born Citizen.
The majority of people of the U.S.A. are natural born Citizens. E.g. Former President Donald Trump is a natural born Citizen because both of his parents were U.S. citizens when he was born in the U.S.A.; but, his three children with wife Ivana are not natural born Citizens, because Ivana was not a U.S. citizen when all three of these children were born in the U.S.A. These three children are STATUTORY U.S. citizens and ineligible for Article II jobs.
To circle back to my original post (why Justice Gray cited Minor v Happersett) that initiated this article, if you read the original Wong Kim Ark decision by Judge Morrow in the Northern District of California you will see that the Government relied very heavily on the statements by Justice Miller in the Slaughter House Cases
“Finally, it is maintained [by the Government] that the United States supreme court, in interpreting the first clause of the fourteenth amendment, now in question, in the Slaughterhouse Cases, 16 Wall. 36, adopted, to all intents and purposes, the rule of international law when it said through Mr. Justice Miller:”
‘The phrase, ‘subject to its jurisdiction,’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.’
“The interpretation, by the supreme court, in the case of Elk v. Wilkins, 112 U.S. 102, 5 Sup.Ct. 41, of this same phrase is also cited in support of the contention made in favor of the rule of international law.”
So Justice Gray responded to this argument by pointing out that two years after the Slaughter House Cases the same group of Justices were not so committed to it because they chose not to decide the issue of children born to alien parents. And in the next paragraph Gray explained the Elk v. Wilkins decision.
Here is the lower courts ruling – In Re Wong Kim Ark (1896)
https://casetext.com/case/in-re-wong-kim-ark
Added bonus from Judge Morrow:
“But the supreme court has never squarely determined, either prior to or subsequent to the adoption of the fourteenth amendment in 1868, the political status of children born here of foreign parents. In the case of Minor v. Happersett, 21 Wall. 168, the court expressly declined to pass upon that question.”
Before reading Judge Morrow decision it would be helpful to read In re Look Tin Sing. This was the case which Morrow ruled was “controlling judicial authority”. It was decided by Justice Field who was a justice for the Minor V Happersett cse.
https://casetext.com/case/in-re-look-tin-sing
Note that in his ruling Judge Morrow declared Wong “a citizen of the United States within the meaning of the citizenship clause of the fourteenth amendment.”
Not a natural born citizen.
https://casetext.com/case/in-re-wong-kim-ark
From the author:
—————-
Taking the commenter’s remarks in reverse order: “Not a natural born citizen.” (Emphasis added) That concession follows the commenter’s quote of District Court Judge William Morrow’s opinion in the lower court decision in the Wong Kim Ark (“WKA”) case. Judge Morrow said: “I am of the opinion Wong Kim Ark is a citizen of the United States within the meaning of the citizenship clause of the fourteenth amendment.” (Emphasis added)
At bottom, the commenter’s concession and Judge Morrow’s decision constitute that which your humble servant has contended for years, i.e., that the Supreme Court’s decision in WKA, affirming without restriction Judge Morrow’s decision, does not “settle” nbC the question under Art. 2, § 1, Cl. 5 of the Constitution. It may “settle” the question of the 14th Amendment citizen status of persons born here of alien or foreign parents lawfully present here, but no more, and particularly not with regard to presidential eligibility.
The commenter cites many passages from Judge Morrow’s lower District Court opinion but omits these comments: “By the law of nations, birth follows the political status of the father, and of the mother when the child is illegitimate. Bar, Int. Law, Sec. 31; Vatt. Law Nat. Secs. 212-215; Sav. Priv. Int. Law, Sec. 351.” (Emphasis added)
The fact that Judge Morrow acknowledges the relevance of §§ 212 – 215 of the de Vattel Treatise The Law Of Nations — and in particular § 212 — is significant, as it underscores his apparent understanding of the distinction between a native-born “citizen” and a “natural born citizen.” They are not synonyms and they are not interchangeable.
Judge Morrow also states in the lower court opinion: “The doctrine of the law of nations, that the child follows the nationality of the parents, and that citizenship does not depend upon mere accidental place of birth, is undoubtedly more logical, reasonable, and satisfactory, but this consideration will not justify this court in declaring it to be the law against controlling judicial authority.” (Emphasis added)
This statement by Judge Morrow seems clearly to be an admission that, although he believes that the de Vattel approach – which he had already cited – to determinations of citizen status was preferable as being “more logical, reasonable and satisfactory…, “ he felt constrained to follow other judicial precedents.
Blindly following illogical, unreasonable or unsatisfactory precedents is a poor judicial protocol. Once, the lower courts in this nation were supposed to follow the precedents of Scott v. Sandford (the “Dred Scott” case, abrogated by the 14th Amendment) and Plessy v. Ferguson (the “separate but equal” case overruled by Brown v. Board of Education).
Again, the dissenting opinion in WKA was originally cited to demonstrate the unprincipled treatment of the dissenter’s words by the Congressional Research Service in its 2016 report. And your humble servant is still waiting for the commenter’s defense of the CRS’ actions, not only as to the manipulation of the words in the WKA dissent, but as to its “Elg Ellipsis” chicanery too.
Author – “It may “settle” the question of the 14th Amendment citizen status of persons born here of alien or foreign parents lawfully present here, but no more, and particularly not with regard to presidential eligibility.”
If only it was that simple.
Yes, Judge Morrow like Justice Gray ruled Wong Kim Ark a citizen of the United States. Neither used the term natural born citizen. In fact I believe the term only appears twice in Judge Morrows opinion both times in citations from other cases and not related to Wong Kim Ark.
Funny then that the US Government in their appellant brief chose to say that Judge Morrow ruled Wong a natural born citizen.
“The district court, following as being stare decisis the ruling of Mr. Justice Field in the case of Look Tin Sing (10 Sawyer, 358), sustained the claim of the respondent, held him to be a citizen by birth, and permitted him to land. The question presented by this appeal may be thus stated: Is a person born in the United States of alien parents domiciled therein a citizen thereof by the fact of birth? The appellant maintains the negative, and in that behalf assigns as error the ruling of the district court that the respondent is a natural-born citizen, …” (Appellant Brief at page 2)
And then later in their same brief they questioned whether children born to Chinese alien parents should share in the eligibility to be President.
“For the most persuasive reasons we have refused citizenship to Chinese subjects; and yet, as to their offspring, who are just as obnoxious, and to whom the same reasons for exclusion apply with equal force, we are told that we must accept them as fellow-citizens, and that, too, because of the mere accident of birth. There certainly should be some honor and dignity in American citizenship that would be sacred from the foul and corrupting taint of a debasing alienage. Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation, conferred by the Constitution in recognition of the importance and dignity of citizenship by birth? If so, then verily there has been a most degenerate departure from the patriotic ideals of our forefathers; and surely in that case American citizenship is not worth having.” (Appellant Brief at Page 34).
https://libraryweb.uchastings.edu/library/research/special-collections/wong-kim-ark/AppellantsBrief.pdf
Other briefs at:
https://libraryweb.uchastings.edu/library/research/special-collections/wong-kim-ark/case.htm
Another blast from the past. A very scholarly linguistic and ancient history analysis of the “natural born Citizen” (nbC) term in our U.S. Constitution: http://www.johnpaulandbertha.org/wbjp/essays/natborn/index.htm
I recommend reading the full scholarly essay written in Dec 2008 by John Greschak at the link above. It is a lengthy one but full of the deep historical information from ancient history and also very scholarly linguistic, grammar, and logical analysis of the “nbC” term suggested by John Jay in his Jul 1787 letter to George Washington to be put into the presidential eligibility clause of the new Constitution in the works back then. We know from the Federalist Papers that the framers studied ancient history and ancient forms of government, and the terms used to describe members of those societies, in the process of determining what type of new government to establish. But if time constrained, at least read the executive summary “synopsis” version available at the same link.
And then I also recommend watching this YouTube video: https://www.youtube.com/watch?v=YGL8CiUtXF0
For many more such examples and writings, search the archives of this (the Post&Email newspaper) site, and also my website and blog. Links below.
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
http://cdrkerchner.wordpress.com
Blast From the Past – 14 Years Ago: “I Believe The Fix Was In for the 2008 Election and The Cover Up is Still Going Strong! The Perfect Storm for a Constitutional Crisis!”: https://cdrkerchner.wordpress.com/2024/01/26/blast-from-the-past-14-years-ago-i-believe-the-fix-was-in-for-the-2008-election-and-the-cover-up-is-still-going-strong-the-perfect-storm-for-a-constitutional-crisis/
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org
Author: “Natural Born Citizen” book
http://www.kerchner.com/books/catalog.htm
I try to post a fuller response but for some reason it left the comment unformatted and not able to edit.
So let’s just say the author needs to read Chief Justice Fuller’s dissent. CJ Fuller is very concerned about children born abroad to US citizen parents. He calls them in opinion “natural born citizens” (Paragraph 162). And he is bothered by the disparity between children born in the US to aliens and children born abroad to citizens. That disparity is the heart of the Paragraph 165 where CJ Fuller says it is unreasonable that children born in the US of aliens are eligible to be president but children born abroad to citizens are not.
From Chief Justice Fuller’s dissent statements on children born abroad to citizens:
126
“If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 28, 1868, when the amendment was declared ratified, were and are aliens, unless they have or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect. And children who are aliens by descent, but born on our soil, are exempted from the exercise of the power to exclude or to expel aliens, or any class of aliens, so often maintained by this court,—an exemption apparently disregarded by the acts in respect of the exclusion of persons of Chinese descent.”
159
“…On the other hand, it seems to me that the rule, ‘Partus sequitur patrem,’ has always applied to children of our citizens born abroad, and that the acts of congress on this subject are clearly declaratory, passed out of abundant caution, to obviate misunderstandings which might arise from the prevalence of the contrary rule elsewhere.”
162
“In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this government. If not, and if the correct view is that they were aliens, but collectively naturalized under the acts of congress which recognized them as natural born, then those born since the fourteenth imendment are not citizens at all unless they have become such by individual compliance with the general laws for the naturalization of aliens, because they are not naturalized ‘in the United States.'”
165
“Considering the circumstances surrounding the framing of the constitution, I submit that it is unreasonable to conclude that ‘naturalborn citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.”
From the author:
——————
As a preliminary housekeeping matter, and for ease of reference, a searchable link to the decision in United States v. Wong Kim Ark (“WKA”) is found here: (UNITED STATES v. WONG KIM ARK. | Supreme Court | US Law | LII / Legal Information Institute (cornell.edu)) Commenter Leland recommends that the “the author,” i.e., your humble servant, “read Chief Justice Fuller’s dissent.”
Ummm…, done that…, multiple times.
Indeed, it is how the butchering of the WKA dissenters’ conclusions — if not the actual words taken out of context by the Congressional Research Service (“CRS”) in its Nov. 11, 2016 “product” — was discovered. In fact, the original reason for citing the WKA dissent in the first place was to underscore the CRS’ deceptive manipulation of language used by the dissenters to make it appear that they were ratifying the “controlling majority” opinion that an nbC could include foreigners. Bad.
The commenter quotes dissenting Justice Fuller as being “concerned” about the citizenship status of children born abroad, and that the Justice identified them (WKA at ¶ 162) as “natural born citizens.” The commenter is correct: Justice Fuller said that.
But here is what he also said immediately following that statement: “If not [natural born citizens], and if the correct view is that they were aliens, but collectively naturalized under the acts of congress which recognized them as natural born, then those born since the fourteenth Amendment are not citizens at all unless they have become such by individual compliance with the general laws for the naturalization of aliens, because they are not naturalized ‘in the United States.’” (Emphasis added)
This statement by Justice Fuller reveals two important facts. First, there has been only a single act of Congress (1 Stat. 103 [1790]) which provided that children born abroad to U.S. citizen parents were “considered to be natural born citizens.” (Emphasis added). No one is claiming that Justice Fuller was good at math. His statement also suggests that he thought the one law that at one time applied was still in effect.
Second, that statute was repealed – not re-enacted “in the same words” as erroneously claimed by Justice Horace Gray in the WKA majority opinion – a mere five years later by 1 Stat. 414 (1795). The repeal arose seemingly out of congressional realization that it could not by a statute purport to alter or amend the definition of an nbC that the Founders had adopted in the Constitution itself. The “natural born citizen” nomenclature has never since been utilized by Congress in any immigration or naturalization statute.
Whether or not dissenting Justices Fuller and Harlan (or their law clerks) were aware of the 1795 repeal of 1 Stat. 103 or whether they were merely inattentive and carelessly accepted Justice Gray’s majority opinion misrepresentation regarding the claimed continuation of the repealed provision is unknown. But the fact remains that, with the repeal of 1 Stat. 103 by 1 Stat. 414, and as part of the repeal, the “natural born” modifier of “citizens” in that statute — the provision of the 1790 statute which Justice Fuller may have believed was still operative – was inoperative.
That anomaly aside, both Justices Fuller and Harlan found it unreasonable – i.e., wrong – for the WKA majority to conclude “that the term ‘natural born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances…,” and that foreigners, regardless of their ethnicity, “could be eligible to the presidency, while children of our citizens, born abroad, were not.”
In 1898, when WKA (and its dissent) appeared on the scene, the reason that children born abroad, even to U.S. citizen parents, would not be eligible to the presidency was because they were no longer to be even “considered” to be natural born citizens, but instead were only “citizens.” That was the result on the enactment of 1 Stat. 414 in 1795, wholly apart from the enactment of the 14th Amendment 73 years later.
That circumstance, however, has nothing to do with any analysis of Wong Kim Ark’s status as a 14th Amendment “citizen” rather than an Art. 2, § 1, Cl. 5 “nbC.” And it most certainly cannot function as an excuse for the CRS’ misrepresentation of the dissenting Justices opinions as purportedly ratifying the “controlling decision” that foreigners born in the United States were nonetheless “eligible to the presidency.” Stated otherwise, and just to the contrary, the dissenters thought it was “unreasonable” to reach that conclusion.
Finally, and slightly off-topic, your servant still awaits an answer to the simple question from anyone…, the commenter…, Brandon…, or even Nikki Haley. If the Founders intended to adopt a high barrier to the insinuation of foreign influence into the presidency – such as provided by an nbC definition requiring birth here to two U.S. citizen parents – why would they have selected an inferior lower barrier – such as concocted under a “citizen at/by birth” definition with no requirement that both parents be U.S. citizens and no requirement that the birth even take place here?
As usual, I’ll wait.
Author – “Justice Fuller was good at math. His statement also suggests that he thought the one law that at one time applied was still in effect.”
No. In Paragraph 160 CJ Fuller acknowledges the current citizenship acts.
“Section 1993 of the Revised Statutes provides that children so born ‘are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.'”
He understood that this statute from 1878 only declared the children born abroad to citizens as “citizens of the United States”. He was aware the natural born modifier was gone. And yet in Paragraph 162 he said that in his judgement “the children of our citizens born abroad were always natural-born citizens”. When he says in paragraph 162 that in his judgement they are natural born citizens, it is clear this is his belief and the fact children like Wong Kim Ark are eligible to be president but children born abroad are not is wrong (Paragraph 165).
In this interpretation Chief Justice Fuller recognizes that the majorty opinion made Wong a natural born citizen even though it didn’t use that specific language.
As to your off topic question. There is a logical explanation but because of the way the site moderates comments (length seems to be an issue), it might not appear and I can’t reply to this comment until it clears moderation (you can’t nest comments likie you can with Xwitter).
From the author:
———————
Again taking the commenter’s remarks in reverse order, his explanation that answers to the simple questions posed by your humble servant would be “too long” to pass moderation as comments at the P&E website, is, respectfully, feeble.
Here are two solutions: (1) moderate the length of the responses, as they cannot possibly be longer than the commenter’s prior comments; or (2) break the answers into two, three or more separate parts, identifying each. The commenter’s current response seems to be more of a delaying excuse than a reason for avoiding or postponing, perhaps indefinitely, answers.
After going through a somewhat convoluted discussion of what Justice Fuller “understood” and “said” in his WKA dissent, the commenter asserts: “In this interpretation Chief Justice Fuller recognizes that the majorty [sic] opinion made Wong a natural born citizen even though it didn’t use that specific language.”
While those without a better understanding of the distinction between the “holding” in a case and non-precedential “dictum” in a case might blithely jump to the conclusion that, sub rosa and “between the lines,” Justice Gray was “deeming” or “considering” Wong Kim Ark to be an nbC, plainly, that is not the case.
It does not matter whether, as the commenter claims, Justice Fuller was aware of the repeal by 1 Stat. 414 of the “considered as natural born” modifier of “citizens” previously included in 1 Stat. 103. The fact remains that any speculation that Justice Gray in the WKA majority opinion was secretly – without that nbC “specific language” – trying to bestow nbC status on Wong Kim Ark must be viewed against the backdrop of his manifest blunder (assuming again that it was inadvertent and not intentional…) in claiming that 1 Stat. 414 “reenacted, in the same words…,” (emphasis added) 1 Stat. 103. “Repeal” is not a synonym for “reenact, in the same words….”
The sole issue before the Court in WKA was whether Wong Kim Ark was a “citizen” under the 14th Amendment, and not whether in addition he was an nbC under Art. 2, § 1, Cl. 5. As noted on this issue, all of the discussions by the Court in WKA about the term “natural born citizen” and later cases parroting that line of thought constitute “dictum, pure and simple.” See Charles Gordon, “Who Can Be President of the United States: The Unresolved Enigma,” 28 Md. Law Rev. 1, 19 (1968). When he wrote his Maryland Law Review article, Charles Gordon was the General Counsel, U.S. Immigration and Naturalization Service, and Adjunct Professor of Law, Georgetown University Law Center.
Finally, taking an apparent cue from the linguistically ambivalent Congressional Research Service, in the first sentence of his remarks, the commenter misquotes your servant. He offers as your servant’s quote: “Justice Fuller was good at math….” In fact, your servant actually said: “No one is claiming that Justice Fuller was good at math.” That statement was a comment on Justice Fuller’s apparent belief that multiple federal laws referenced the “considered as natural born citizens” verbiage in 1 Stat. 103, when in fact only one law did that…, and it was repealed a mere five years after it was enacted.
The linguistic manipulation of your servant’s “quote” by the omission of the preceding words – with no ellipsis reader signal – resembles the CRS’ butchering of the WKA dissenters’ words in footnote 207, p. 48 of the CRS 2016 report (https://www.scribd.com/doc/295707413/New-CRS-Memo-re-Qualifications-for-President-and-the-Natural-Born-Citizenship-Eligibility-Requirement-Congressional-Research-Service-R42097-2016). And as a P&E erratum correction, your servant’s prior references to that footnote as being “p. 47, fn. 205” are in error: the correct citation is “p. 48, fn. 207.”
Patience is a virtue. Still waiting.
IMHO, We do not have a proper understanding of human psychology when it comes to taking this information to heart. I have good conservative friends who seem like they are constitutionally (I couldn’t resist) incapable of “going there” when it comes to Natural Born Citizen.
It is just a guess but there is something in our make up that automatically defers to authority in many regards: Rule making, expertise, management. Very few are willing to reject that state of mind and truly “question authority”. Plus, the psy-ops crew knows exactly how to crush such questioning; i.e., make us look crazy.
That’s the battlefield. Back to the battle.
Thank you for your excellent research on Natural Born Citizen. My most memorable event on this issue was when I was sent a copy of the first CRS document which was sent to Congress. It was sent to me from the office of my then Senator, Blanche Lincoln.
IMO the CRS was given the task by Nancy Pelosi (the CRS works for Congress) to provide a document to Congress explaining why Obama was eligible to be president. Not IF he was eligible. I believe this information was requested after Obama had been sworn-in by Supreme Court Chief Justice John Roberts. Members of Congress were getting a lot of calls and letters from constituents about Obama and his eligibility…and lack thereof. The CRS was never going to determine Obama was ineligible after Obama had been sworn-in. Pelosi wanted to get Congress on the same page as they tried to explain why Obama was eligible. Several additional CRS reports were sent to Congress as errors were pointed out in the original document.
I sent a copy of the original document to Sharon Rondeau and to Lawyer Mario Apuzzo years ago………….
Additional information on this here:
https://www.bing.com/search?q=1st+CRS+Memo+%E2%80%93+CDR+Kerchner+(Ret)%27s+Blog+(wordpress.com)&cvid=3be0a7ed64d242158aa8e23136404cca&gs_lcrp=EgZjaHJvbWUyBggAEEUYOTIGCAEQRRhA0gEJMTg1NDZqMGo5qAIAsAIA&FORM=ANAB01&PC=U531
Response from the author:
——————–
Bob68+ correctly credits CDR Charles Kerchner (Ret) and his attorney, Mario Apuzzo, with being among the first nbC warriors many years ago. Your humble servant entered the fray long after they, John Charlton, the intrepid P&E Editor and others established the beachhead, but he appreciates the kind words offered regarding his nbC research offered after the beachhead.
It bears repeating and recalling as well that while the referenced “first” CRS report of April 3, 2009, posted by Mr. Apuzzo, is where the first Congressional Research Service (“CRS”) “Elg Ellipsis” occurred, it wasn’t the last. It also bears repeating that your servant’s analysis of the effect of the ellipsis occurs against the backdrop of the applicability of the nbC definition found in the 1758 Emer de Vattel treatise, The Law of Nations, Book 1, Ch. 19, § 212 (“§ 212”) and as posited was adopted by the Founders in Art. 2, § 1, Cl. 5 of the Constitution.
The 2009 CRS first ellipsis omission of quoted words in the Supreme Court’s 1939 decision in Perkins v. Elg made it appear — falsely under a § 212 analysis — that the Supreme Court had ruled in Elg that a son born to an alien (non-U.S. citizen) parent father was nonetheless eligible to the presidency. Coincidentally, that false factual scenario, enabled by the ellipsis, corresponded to the factual and purported nbC bona fides of one Barack Hussein Obama.
The next CRS report of Nov. 11, 2014 repeated the same ellipsis omission of the date from the quote from the Elg case, with the same effect: a false impression that a son born in St. Louis to a purported “foreign” father — “Steinkauler the Elder” – was nonetheless constitutionally eligible to the presidency. In reality, Steinkauler the Elder was naturalized as a U.S. citizen before, not after, his son was born in St. Louis. And Steinkauler the Younger’s mother became a U.S. citizen by marriage before giving birth in St. Louis. The Supreme Court’s discussion of “Steinkauler’s Case” in Elg was a backdrop for the Court’s ruling on the nbC status of one Marie Elg.
The most recent indignity occurred in a CRS report dated Jan. 11, 2016 – nearing the end of Mr. Obama’s second term (some prefer the label “usurpation”) — when the CRS erased the prior ellipsis omissions from the 2009 and 2014 CRS reports. That erasure restored the original words of the Supreme Court in its quote from a “letter of advice” by prior U.S. Attorney General Edwards Pierrepont regarding the facts of Steinkauler’s Case.
While the chronology is somewhat convoluted, the bottom line is simple. The two ellipses in 2009 and 2014 made it appear that Mr. Obama was eligible to the presidency; the 2016 erasure and reversal of the prior ellipses eradicated any trace of the earlier CRS linguistic alterations. Unless one has made hard copy prints or screenshots of the original CRS documents, the evidence has disappeared from the CRS online database…, but remains (today) accessible at Scribd.com.
It was, as they say, “as if it never happened.” And as Sherlock Holmes noted to Watson: “The perfect crime is the one that is never discovered.”
DeMaio:
Great article once again and excellent comment too.
If copies are available online via SCRIBD.com of the various before and after copies of the infamous CRS memos, as many patriots as possible should download a copy and preserve copies (of the CRS’ evil shenanigance and lying by omission – probably even criminal under federal law what they did) in their personal local computer archives. Also possibly upload them to other online sites that accept the uploads of documents, in a folder in that site labeled CRS Memos, and each upload labeled appropriately as to whether each one was an original version or a later subtly modified/changed version.
Let’s make it harder for the far-left and three letter corrupt agencies and big tech to make all the evidence of the CRS fraud and nefarious activities to be disappeared.
Hopefully ThePostEmail has copies of the first ones and the later changed ones in its archives. If not, copies should be sent to her.
CDR Kerchner (Ret)
http://www.ProtectOurLiberty.org