by Joseph DeMaio, ©2024
(Feb. 13, 2024) — One of the more useful features of The P&E platform, apart from the topical articles appearing here, is the comments section. There, some insightful and frequently robust discussions can take place where differing views can be voiced and compete with one another. Is not the First Amendment cool, despite the efforts of many on the Left to censor and neuter its existence?
One of the topics generating some of the more spirited and robust exchanges is – that’s right, Virginia – the “natural born Citizen” (“nbC”) presidential eligibility issue under Art. 2, § 1, Cl. 5 of the Constitution. That provision restricts eligibility (not “qualification”) to the presidency to a “natural born Citizen, or a Citizen of the United States, at the time of the adoption of this Constitution….”
It is assumed that most, if not all who are reading this offering, are generally familiar with the competing theories of what the nbC term actually meant to the Founders in 1787 when they were drafting the Constitution. For a quick “refresher course,” some may wish to review this post.
In addition, from time to time it is useful to explore in more detail some of the comments submitted to posts addressing the issue. That has happened several times in the past, as for example here and here.
Such a time again presents itself regarding multiple comments offered by commenter Joe Leland to a recent article by your humble servant addressing references to the nbC issue occurring at the recent Supreme Court oral arguments in Trump v. Anderson. That is the case where the Colorado Secretary of State is attempting to keep President Trump off the primary ballot on the claim that he is an “insurrectionist” barred under the 14th Amendment. Your servant addressed that mile-high anomaly here.
Mr. Leland offers many comments relating to the nbC issue as discussed in your servant’s “Anderson” article, and readers are encouraged to review those comments…, and perhaps offer their own comments.
As for the present article you are reading, the objective will be to respond to and counter some selected comments offered by Mr. Leland. There are many responses that might be made, but a complete analysis would rival “War and Peace” in length. Your servant will offer, instead, examples and responses that would typify those for a complete novel…, but shorter.
Ready? Let us begin.
Commenter Leland challenges several of your humble servant’s assertions. Candidly, the document linked in his comment of 2/12/24 at 1:04 AM from “tesibria.typepad.com” is a useful compendium of assorted lower trial court cases, administrative rulings and “grand jury presentments” relating to Barack Hussein Obama’s purported natural born Citizen (“nbC”) eligibility and seemingly offered in support of the commenter’s arguments. Faithful P&E readers are encouraged to sample the list. Your servant appreciates the list as well, as it catalogues the opposition ammunition pile, at least as of 2012.
Although apparently not updated since 2012, it still contains hundreds of old citations to assorted determinations and cases…, ummm, problematically…, not one of which includes reference or citation to a decision of the U.S. Supreme Court (“USSC”) directly addressing and confirming that Barack Hussein Obama, Jr. was, is, or in the future will be a “natural born Citizen” under the Constitution’s Eligibility Clause, Art. 2, § 1, Cl. 5. Not… one. And please, the intellectually flawed and obiter dictum littered majority decision in United States v. Wong Kim Ark (“WKA”) is not the “one,” as hereafter discussed.
As a prefatory observation, it is posited that there are two competing theories as to what the Founders in 1787 understood the nbC term to mean. Those two theories are (1) only a person born in a country to two parents who were already citizens of that country, the “de Vattel § 212” definition, or (2) any person who is a “citizen at birth” or a “citizen by birth” without the need for later formal naturalization and regardless of place of birth and/or parental citizenship.
Although tempting, your servant has neither the time nor the inclination to burrow through each of the listed “tesibria.typepad.com” citations to analyze, distinguish or dissect individual examples. Moreover, it is presumed that P&E readers similarly do not have the time (or inclination) to tackle a “War and Peace” dissertation on the nbC issue.
On the other hand, perhaps discussion and brief analysis of a few of the cases included in the list and purporting to ratify the “citizen-at/by-birth” theory of nbC status will explain why, in the absence of a binding USSC decision articulating the Founders’ 1787 understanding of the definition of the term, all of the other cases are meaningless chaff, floating through the air and serving little purpose other than to baffle and confuse those seeking the truth.
As but one example cited in the list offered by Mr. Leland in support of an nbC definition purporting to declare Sen. John McCain to have been constitutionally eligible to the presidency, the list (seemingly supported by the commenter) cites “Hollander v. McCain, 566 F. Supp. 2d 63 (D.N.H. 2008) (dismissing case challenging McCain’s eligibility).” Memo to the commenter and all others reading this post: the case was dismissed for lack of litigant standing and not as the result of the court’s rejection of the claim that McCain was constitutionally-ineligible as lacking nbC bona fides.
Indeed, at the very beginning of the opinion (566 F. Supp. 2d at 65), the court clearly and unambiguously states: “Based on the arguments presented there [at a July 24, 2008 hearing on a motion to dismiss], as well as in the parties’ briefing, the court rules that Hollander lacks standing to bring this action. The court does not reach the rest of the parties’ arguments, including, most notably, the question of McCain’s constitutional eligibility to be President.” (Emphasis added)
Accordingly, any claim that Hollander constitutes useful or binding nbC precedent is, to use polite terminology…, misplaced. Woefully and deceptively misplaced.
Conceptually, the vast majority of the other cases on the tesibria.typepad.com list rest on the same legal foundation: dismissal for lack of “standing” rather than agreement on a particular definition of an nbC or dismissal based on a misapprehension of the “holding” in Hollander, as was the case in Tisdale v. Obama.
That case is also on the commenter’s “approved” list of “controlling” cases. Significantly, the Fourth Circuit per curiam affirmation of the District Court’s dismissal of the plaintiff’s challenge in Tisdale (for failure to state a claim) announces that it is an unpublished, non-precedential ruling. Memo to file: a “non-precedential” ruling is not properly labeled (or marketed) as being binding on anyone other than the parties to the case.
In the Tisdale District Court ruling, we find the following: “The Court rules that the Complaint does not state a claim upon which relief may be granted. The eligibility requirements to be President of the United States are such that the individual must be a ‘natural born citizen’ of the United States and at least thirty-five years of age [and, omitted from the list by the court, at least 14 years a resident of the nation]. U.S. Const. art. II, § 1.
“It is well[-]settled that those born in the United States are considered natural born citizens. See, e.g., United States v. Ark, 169 U.S. 649, 702, 18 S.Ct. 456, 42 L.Ed. 890 (1898) [sic: the court misidentifies the respondent] (‘Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States.’); Perkis v. Elg, 99 F.2d 408, 409 (1938) (sic: the court misidentifies the plaintiff). Moreover, ‘those born “in the United States, and subject to the jurisdiction thereof,”… have been considered American citizens under American law in effect since the time of the founding … and thus eligible for the presidency.’” [citing] Hollander v. McCain, 566 F.Supp.2d 63, 66 (D.N.H.2008).” (Emphasis added)
The sloppiness of the lower court Tisdale decision regarding its typos and mis-citations casts doubt over its precedential value. Carelessness in details often also indicates carelessness in logic. And the District Court’s conclusion that a 14th Amendment “citizen” is “thus eligible for [sic: to?] the presidency” – and specifically citing Hollander in support of that conclusory and unfounded claim – is absurd. Once again…, this…, time…, more…, slowly: the Hollander court clearly stated that it was not reaching the nbC issue with regard to Senator McCain. Full stop.
Finally, one other case cited in the list in support of the “citizen at/by birth” theory to be preferred over the de Vattel § 212 nbC definition – a person born in a country to two parents who are already citizens of that country – is, of course, WKA.
While your servant has frequently critiqued that decision, including the manifest “in the same words” error committed by Justice Gray addressed here, Justice Gray cites among other cases in support of his otherwise flawed majority opinion the decision of Supreme Court Justice Noah Swayne (sitting in circuit) in U.S. v. Rhodes, 27 F.Cas. 785 (1866).
Justice Gray cites with seeming approval the following statement from Justice Swayne in the Rhodes case (27 F.Cas. at 789): “All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are in theory born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons. 2 Kent, Comm. 1; Calvin’s Case, 7 Coke, 1; 1 Bl. Comm. 366; Lynch v. Clarke, 1 Sand. Ch. 583.” (Emphasis added)
Apart from omitting the third (i.e., more than “two”) universally-recognized exception – children born to parents of a hostile occupying force – Justice Gray seems nonplussed at citing favorably the Rhodes decision, even after the 1868 ratification of the 14th Amendment, which decision characterizes “slaves, in legal contemplation…, [as] property, and not persons.” Bad form, especially after 1868.
Justice Swayne might be excused for the comment, since the 14th Amendment was not yet in existence in 1866. But Justice Gray’s reliance on Rhodes in WKA, decided in 1898, thirty years after ratification of the 14th Amendment, without articulating disapproval of Justice Swayne’s “slaves are property, and not persons” claim, is an unfortunate omission, particularly for a Supreme Court Justice.
Further adumbration (look it up) of the nbC topic here in a response to comments offering obiter dictum as precedent, flawed case law decisions and unsupported allegations would be pointless. The commenter believes what he wants to believe, and no volume of contrary empirical evidence will likely change his mind. Moreover, the same might be said for many “de Vattel-Deniers” in academia, the mainstream media and, of course, the Congressional Research Service, which touts itself to be the repository of “the nation’s best thinking.” Spare me.
But your servant still awaits an answer from the commenter…, or anyone else: why would the Founders have intentionally adopted a lower “citizen-at/by-birth” nbC definition barrier to the potential for foreign influence in the presidency when a known and available higher barrier – the de Vattel § 212 barrier – existed, particularly 81 years before ratification of the 14th Amendment?
The answer – clear to some, but obscure to others – is simple: they wouldn’t. And they didn’t.
Author – “But your servant still awaits an answer from the commenter …”
To answer the question we need to put ourselves into the frame of mind of 1787 Framers. What did they consider a sufficient “a strong check to the admission of Foreigners into the administration of our national Government”?
On August 9th, 1787 we see this exchange from Madison’s notes on the Convention:
Mr. Govr. MORRIS moved to insert 14 instead of 4 years citizenship as a qualification for Senators: urging the danger of admitting strangers into our public Councils. Mr. PINKNEY 2 ds him
Mr. ELSEWORTH. was opposed to the motion as discouraging meritorious aliens from emigrating to this Country.
Mr. PINKNEY. As the Senate is to have the power of making treaties & managing our foreign affairs, there is peculiar danger and impropriety in opening its door to those who have foreign attachments. He quoted the jealousy of the Athenians on this subject who made it death for any stranger to intrude his voice into their Legislative proceedings.
Col. MASON highly approved of the policy of the motion. Were it not that many not natives of this Country had acquired great merit during the revolution, he should be for restraining the eligibility into the Senate, to natives.
The suggestion by George Mason that only “natives” be allowed as senators i was answered by James Wilson who said it wasn’t fair to people like him who were not natives.
On August 13th, 1787 we see this exchange:
Mr. GERRY wished that in future the eligibility might be confined to Natives. Foreign powers will intermeddle in our affairs, and spare no expence to influence them. Persons having foreign attachments will be sent among us & insinuated into our councils, in order to be made instruments for their purposes. Every one knows the vast sums laid out in Europe for secret services. He was not singular in these ideas. A great many of the most influencial men in Massts. reasoned in the same manner.
Again Wilson argued that members of the Convention were non-natives and this would not be fair to them.
It appears the Framers believed limiting membership in government to natives was the check needed to limit foreign influence.
Vattel said that natives and natural born citizens required two citizen parents.
Blackstone said natives and natural born subjects were anyone born in the realm.
Which definition of natives were the Framers using?
If they were using Vattel’s definition James Wilson’s argument was meaningless because none of them had two citizen parents and met that definition. If they were using Blackstone’s definition of natives then Wilson’s argument makes sense. Wilson, Robert Morris and Thomas Fitzimmons were not natives.
During the August 13th debate Gouverneur Morris suggecsted a “grandfather” clause for those now citizens.
“Mr. Govr. MORRIS moved to add to the end of the section [art IV. S. 2] a proviso that the limitation of seven years should not affect the rights of any person now a Citizen.”
So only a few weeks before the presidential eligibility and grandfather clauses were added to the Constitution, the Framers debated how to have a checked on foreign influence in the government and how to enable non-natives to participate.
The author responds:
****** Part 1 of 2 ******
In the continuing exchange of thoughts and theories in the nbC issue between your humble servant and one “Joe Leland,” your servant offers the following:
First, as to the “why-would-the-Founders-choose-a-lower-barrier” issue, the commenter states: “we need to put ourselves into the frame of mind of 1787 Framers,” thereafter proceeding to cite many remarks of Founders at the Constitutional Convention regarding “citizenship” qualifications (not the term “natural born Citizen” now found in the actual language of the Constitution) for Members of the House and the Senate rather than the presidency.
Their discussions did not focus on the term “natural born Citizen” (“nbC”) at all and in particular, its use other than with regard to members of the House or the Senate. And to reiterate, the nbC definition most likely to have been adopted by the Founders was that articulated in § 212, Book 1, Ch. 19 of The Law of Nations (1758) by Emer de Vattel.
Those quotes cited by the commenter from the Constitutional Convention have little, if anything to do with the nbC eligibility restriction for the presidency. While the House and the Senate are vital elements of the Republic, they are not the same as the presidency. That is why the restrictions and qualifications for the House and Senate are worded differently from the eligibility standards for the presidency. Thus, the commenter’s observations, while interesting as to the issues affecting members of the legislative branch, have no relevance here: there is no such thing as a “natural born Senator” or a “natural born Representative.” As Mark Twain noted, words are important, and “lightning” is not the same thing as “lightning bug.” Similarly, “President” is not the same as “Senator” or “Representative.”
Next, the commenter notes: “Vattel said that natives and natural born citizens required two citizen parents. Blackstone said natives and natural born subjects were anyone born in the realm.” Apart from the fact that after 1776, a U.S. “citizen” was no longer a British “subject,” there is or should be little dispute that the de Vattel definition of an nbC creates a higher barrier to the insinuation of foreign influence into the new Republic’s government – most particularly the presidency – than the lower “citizen at/by birth” standard.
The commenter notes: “If … [the Founders] were using Vattel’s definition James Wilson’s argument [relaxing congressional qualification standards for aliens] was meaningless because none of them had two citizen parents and met that definition.” (Emphasis added)
Seriously? That is precisely why the Founders added the “citizen grandfather” exception to the restrictive nbC clause in Art. 2, § 1, Cl. 5: the lack of two U.S. citizen parents otherwise required by § 212. Referencing the Aug. 13, 1787 debates, the commenter notes: “Mr. Govr. MORRIS moved to add to the end of the section [art IV. S. 2] a proviso that the limitation of seven years should not affect the rights of any person now a Citizen.”
Apart from the immateriality of that statement to the presidential nbC issue, the quasi-“grandfather clause” proposed by Gouv. Morris (again, as to House members, not the Senate or the President) failed on a vote of 6-5 at the convention. See Madison’s notes, Aug. 13, 1787, fn. 15. That is why one does not see a “citizen grandfather” clause in the final Constitution’s provisions regarding House Members, Art. 1, § 2, Cl. 2.
There are in the final version of the Constitution, of course, 7-year and 9-year citizenship requirements, respectively, for Representatives and Senators, now found in Art. 1, § 2, Cl. 2 and Art. 1, § 3, Cl. 3. But those are not “grandfather clauses” at all: they are threshold qualifications applicable to otherwise qualified persons, not to persons who would at the outset of taking office be disqualified or rendered ineligible in the absence of the clause.
Stated otherwise, the Founders understood the difference between the qualification standards they intended to adopt for Representatives and Senators as contrasted with the higher eligibility standards to be applied to persons aspiring to the presidency. Rocket science this is not.
And in any event, for neither the House nor the Senate is there the same “grandfather” excepting clause regarding those who are “natural born Citizens” who were merely “citizens” when the Constitution was adopted. Indeed, the absence of that type of excepting clause language with regard to Representatives and Senators merely underscores the conclusion that the Founders were adopting the de Vattel § 212 definition of an nbC in the only office to which it had application, i.e., the presidency as restricted in Art. 2, § 1, Cl. 5 of the Constitution.
Third, the commenter states: “So only a few weeks before the presidential eligibility and grandfather clauses were added to the Constitution, the Framers debated how to have a checked [sic: check?] on foreign influence in the government and how to enable non-natives to participate.”
Again, the citations by the commenter merely underscore and fortify the concerns the Founders had for the insinuation of foreign influence. While the concerns were high for the Congress, they were paramount for the presidency. The citations to the comments of the Founders at the Constitutional Convention, however, shed no light at all on why as to the presidency they would have purportedly selected a lower barrier– today’s woke “citizen at/by birth” standard – to such insinuation over the available higher barrier: de Vattel’s § 212 definition. Again: no light at all.
Ironically (but fortuitously), the commenter’s observations and references to the Constitutional Convention debates confirm that the Founders seem clearly to have adopted the de Vattel § 212 definition as presenting the superior and higher barrier rather than today’s woke inferior, lower barrier. Your servant expresses appreciation to the commenter for bringing these facts to light].
Is it the author contention that when Vattel said “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” – natives and natural born citizen did not mean the same thing?
If the author agrees that under Vattel, natives and natural born citizen are synonymous, then when the Framers used the term natives as a requirement for members of Congress, it would have the same meaning as it they had used natural born as the requirement.
Or does the author have a different understand of the word natives? If so maybe he could explain his understanding of the difference between “The natives, or natural born citizens”.
From the author:
——————-
The commenter seeks clarification regarding your humble servant’s interpretation of de Vattel’s words. Happy to respond.
Specifically, the commenter seeks clarification as to whether the terms “natives” and “natural born citizens” are in your servant’s view synonymous. Your servant’s answer: they are related, but they are not synonymous.
To begin with, the second sentence of § 212, where de Vattel states that “[t]he natives, or natural born citizens, are those born in the country, of parents who are citizens…,” cannot and should not properly be read in isolation. The rest of § 212’s language must also be taken into consideration in order to ascertain what de Vattel was saying.
That would include his final statement in § 212 that “in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.” This statement recognizes the 1758 (as well as 1787) principle of coverture, where upon marriage, the wife became merged with the husband, with the husband being the dominant “head” of the union.
Taking a cue from a prior comment made, in order to better understand what de Vattel was saying, we should “put ourselves into the frame of mind of [the] 1787 Framers.” Prudent advice. When that is done, it is undisputed that the Founders sought to adopt the highest barrier available against the potential for the insinuation of foreign influence, applicable to those who would be the Commander in Chief.
As John Jay “hinted” to Washington, the “Command in chief of the [A]merican army shall not be given to, nor devolved on, any but a natural born Citizen.” (Emphasis Jay’s) Jay used the term “natural born Citizen,” underlining “born” and capitalizing the “C.” He did not did not use the term “citizen” or “native” or “native born citizen,” and for good reason: if as your servant has argued, the source for his words to Washington was § 212 and the two terms were synonymous, why would he not have selected the shorter expression? Answer: he would not. And he did not. The § 212 definition from de Vattel’s treatise provided all that he needed to express his concerns.
De Vattel’s terminology, properly analyzed, yields recognition that his use of the disjunctive term “or” may have been – and your servant posits that in de Vattel’s mind it was – in implicit recognition that while all natural born citizens are also “natives,” not all “natives” are natural born citizens. It is the Venn diagram situation. Stated otherwise, only “natives” who are born in the country to citizen parents are properly recognized as “natural born citizens.” That is clear from the balance of the second sentence in § 212 stating, viz.: “… are those born in the country, of parents who are citizens.” (Emphasis added)
Even in 1758, when de Vattel composed § 212, as well as in 1787, when the Founders adopted the term “natural born Citizen” in the Constitution, there were people born in British America to foreign parents. Those persons may well have been characterized as “natives” under a strict “jus soli” (place of birth governs) theory. But they were not “natural born Citizens” because their parents – under a jus sanguinis (parental extraction governs) analysis – were not already at the time of birth U.S. citizens.
However, if the insinuation of foreign influence was the danger to be precluded – an undisputed historical fact – even a “native” born to foreign parents here could represent a disqualified category of persons to be entrusted with the “command of the “american army.”
That might be inconsistent with a 2024 “woke” contemporary view, but in 1787, if we “put ourselves into the frame of mind of 1787 Framers…,” it was seen as not merely logical, but critical as well. Recall that James Madison’s original suggestion to confine the presidency to a “citizen,” – i.e., even under § 212, merely a “native” – was rejected, with the higher barrier of “natural born Citizen” substituted. If in 1787, the Founders believed that “natives” and “natural born citizens” were synonymous, there would have been no need to reject Madison’s motion.
By adopting a term that blended both the jus soli and jus sanguinis principles, as does § 212, the Founders clearly differentiated between “natives” and “natural born Citizens,” just as does a proper interpretation of de Vattel’s definition.
Moreover, quite apart from whether de Vattel differentiated between the two – your servant posits, of course, that he did – the Founders differentiated between a “native” and a “natural born Citizen” when they inserted the “citizen-grandfather” clause as an exception to the high “check to the admission of Foreigners” cautioned by Jay and embedded in Art. 2, § 1, Cl. 5 of the Constitution. If the terms were synonymous, the citizen-grandfather clause would have been unnecessary.
Accordingly, while “natives” and “natural born citizens” in de Vattel’s § 212 might admit themselves to differing interpretations, it is posited that while the terms are related, historical actions by John Jay and the Founders, viewed against the backdrop of their 1787 “frame of mind” confirm that they are not synonymous, today’s claims to the contrary notwithstanding.
2/2
Author – “Justice Gray cites with seeming approval the following statement from Justice Swayne in the Rhodes case: “All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are in theory born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons. 2 Kent, Comm. 1; Calvin’s Case, 7 Coke, 1; 1 Bl. Comm. 366; Lynch v. Clarke, 1 Sand. Ch. 583.””
Here is Justice Gray’s actual citation from Rhodes.
“In U. S. v. Rhodes (1866), Mr. Justice Swayne, sitting in the circuit court, said: ‘All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.’ ‘We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.’ 1 Abb. (U. S.) 28, 40, 41, Fed. Cas. No. 16,151.”
Justice Gray cites with approval only the portion of the Rhodes decision that applies to the question of birth and allegiance. He omitted the rest of the Rhodes passage because it was either no longer applicable (slavery) or because he addressed it elsewhere. For example, Justice Gray cites the two exceptions – children of ambassadors and children of occupation armies on multiple occasions.
Continued from Joseph DeMaio:
****** Part 2 of 2 ******
Next, the commenter questions your servant’s focus on Justice Gray’s majority opinion in Wong Kim Ark (“WKA”) which cites Justice Swayne’s opinion in the Rhodes case. To be clear, Justice Gray was citing Justice Swayne’s decision in Rhodes where Justice Swayne – not Gray – made the comment about slaves being property. Your servant never intimated that Justice Gray said that, but only suggested that in WKA, it might have been prudent for Gray to note that his reference to the Rhodes decision also disapproved of the “slaves are property” language contained therein. Gray did not do that.
The anomaly is akin to people citing Justice Gray’s majority WKA opinion as purporting to “settle” the nbC issue as “precedential” without also offering a rational defense of his claim – plainly wrong on its face – that Congress purportedly “reenacted” 1 Stat. 103 (1790) “in the same words” when it enacted (not “re-enacted” after a complete repeal) 1 Stat. 414 (1795). As Emerson noted: “A foolish consistency is the hobgoblin of little minds….” (Quote by Ralph Waldo Emerson: “A foolish consistency is the hobgoblin of littl…” (goodreads.com)).
Finally, the commenter challenges your servant’s analysis of Hollander v. McCain, calling it a “mystery” and claiming that “WKA is a precedent.” Mystery solved and “WKA precedent” explained:
First, your servant spent time, by way of example and as disclosed in the post, addressing the Hollander decision because there are (at present) nearly 150 citations to it in reported cases, administrative proceedings, appellate briefs, secondary sources, law review articles and court orders, and not exclusively for the proposition that litigants must have “standing” to maintain actions in court.
Specifically, the citations also include ones advancing the bogus proposition that Hollander also addresses the nbC issue in favor of various individuals who may not be true nbC’s, including Barack Obama, Ted Cruz, John McCain himself and one John Anthony Castro, a putative nbC candidate for 2024 president. The citations to Hollander on the standing issue concededly outnumber those on the nbC issue, but those citing the case for the latter proposition are far more than zero. Even one more than zero is a problem. That is why Hollander was addressed.
Second, as for the “precedential” weight properly to be accorded to the flawed majority opinion in WKA, it is precedent for one thing and one thing only, viz., a Chinese person born in San Francisco to lawfully-domiciled Chinese foreigner parents in San Francisco is a “citizen” of the United States under the 14th Amendment. Period. No more…, no less.
As noted by Charles Gordon in his 1968 law review article, “Who Can Be President of the United States: The Unresolved Enigma,” 28 Md. Law Rev. 1, 19 (1968), all of the discussion in the case not directly related to the 14th Amendment “citizen” issue affecting Wong Kim Ark, is “dicta, pure and simple….” And, as noted by the Supreme Court: “Dictum 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).
1/2
Author – “Memo to file: a “non-precedential” ruling is not properly labeled (or marketed) as being binding on anyone other than the parties to the case.”
1) Looking back at the author’s “Trump v Anderson” article I can find only one time I used the term “precedent” – “In almost every case they relied on US v Wong Kim Ark as precedent.” The author even cited this same sentence in his response. But his response is about lower court decisions being precedent. An argument I never made.
“A dismissal of a case for lack of standing is not a decision on the merits and is not controlling precedent. Furthermore, obiter dictum on the nbC issue strewn throughout and littering the WKA majority decision, as well as other cases where the nbC issue was mentioned in passing, does not count as controlling precedent. Full stop.”
2) In providing a link to Birther court cases, I specifically pointed out the ones on the first two pages that “decided Obama’s eligibility based on his being a natural born citizen (first two pages).” The heading listed it on “tesibria.typepad.com” is even labeled “I. Birther Cases with Decisions Recognizing that Obama is a ‘Natural Born Citizen’……………………….1”
Hollander v. McCain is neither a case involving President Obama nor is it listed in the first two pages under the “Birther Cases with Decisions Recognizing that Obama is a ‘Natural Born Citizen'”. Why he spent time on it is a mystery. The author should focus his attention on those cases. Particularly the ones that mention their reliance on WKA. WKA is a precedent. And was recognized as such even in 1898.
“We the People”, the first three words of the U.S. Constitution, are ultimately responsible for the enforcement of another three words in OUR U.S. Constitution, being, “natural born Citizen” (nbC).
We the People on Main Street USA today are mostly non-lawyers, so, all the seemingly diversionary legal scrutiny from state-licensed attorneys on “natural born Citizen” are so esoteric as to be dismissed by U.S. citizen-laypersons as deliberate eye-glazed hocus-pocus-focus from Theft Left 1NF0maniacs and liars for hire attorneys at Perkins-Coie and pimps of Lady Justice Thief Justice Roberts, and others, who monkey around with nbC legal history with their DCeitful assembly of half-baked half-stories all as pretty-wrapped impressionably in the wise guys wise guise of fully legal-appearing authenticity.
And where has all this legal go-around gotten We the People on Main Street USA ever since Inside Traitor Nancy Pelosi forged mulatto-muslim-communist kingpin Obama’s DNC nomination papers on 08-28-08? https://www.youtube.com/watch?v=rXFwqUi3zR0&feature=youtu.be
ANSWER: just look at today’s newscasts of accelerating social chaos
So, I say today, all the U.S. citizen-laypersons on Main Street USA can responsibly discard the past 16 years of legal circular discussions of what nbC was ever meant to mean, and accept their own natural reality (eyes), by reading the history of nbC-promoter, John Jay https://walterstahr.com/books/john-jay/ and by internalizing how all previous generations of free U.S. citizens on Main Street USA interpreted nbC for 219 years of precedential presidential elections prior to 08-28-08: https://www.scribd.com/doc/48856102/All-U-S-Presidents-Eligibility-Grandfather-Clause-Natural-Born-Citizen-Clause-or-Seated-by-Fraud
natural reality (eyes): seeing is believing
Obama-narrative reality (lies): believing is seeing