The Right Wing

Initially I was fairly confused as to the claim this case was presenting to the court.  After doing a lot of reading including the actual case filing and Donofrio’s website I have a pretty clear handle on the case I believe.  There is a lot of bad information out there so hopefully I can clear it up.  Warning this could get pretty long.  The next few paragraphs discuss the Supreme Court and legal details of the case, if you want to get straight to the “natural born citizen” argument I suggest you skip to the line break a bit of the way down.

First off this has nothing to do with Barack Obama’s birth certificate being a fake, him being born in Kenya, or that he is a citizen of Indonesia.  That is the Berg case.

The case is called Donofrio v. Wells.  Nina Wells is the NJ Secretary of State and is suppose to verify that those she put on the ballot are eligible to run for President.  Donofrio claims she did not check this and that is why this is Donofrio v. Wells.  The NJ Secretary of State’s office actually admitted to not verifying the candidates eligibility because they assumed everything was ok since they got nominated by their respective parties.  This case actually claims that three of the candidates were not eligible because they are not “natural born citizens.”  The three candidates are Barack Obama, John McCain, and Roger Calero.  Roger Calero was the Socialist Worker’s Party candidate and since he is of no real importance I won’t talk about him.  The John McCain claim has to do with him being born in Panama and I suggest you read the case filing for more on him.  Since Barack Obama is the President elect I will focus on him and the case against him.  What Donofrio filed for was a “stay” of the election.  Meaning he wanted the election put on hold until this case was heard and decided on.  The case needed to be heard and decided on by the 15th of December, that is when the electors cast their votes and Barack Obama is officially tapped as the next President.  The “Writ of Certiorari” portion of the filing was not rejected even though the “stay application” was.  This technically means the case isn’t dead instead it is pending, i.e. the case could actually end up still getting heard.  Donofrio could push this by filing a petition I believe but it makes no difference because it wouldn’t be done before the 15th and he has stated he will do no more with this filing.

There is another case making the same claim about Barack not being a natural born citizen and that is called WROTNOWSKI v. BYSIEWICZ .  As you can see in the link, this case was distributed to the rest of the Supreme Court by Justice Scalia for a conference on Dec. 12th.  Donofrio actually worked on this one too but the difference is that it is more in depth, has a cleaner track record, and has some new very interesting information that I will get to.  When I say “cleaner track record” I am referring to the fact that there were some legal problems with the DONOFRIO v. WELLS case as the NJ courts apparently mis-filing something but that really is way to deep to get into.

Lets also quickly discuss how this works with the Supreme Court.  First the case is submitted without you being able to choose which Justice it goes to.  That Justice can then deny the application for stay or refer it to full court (the other Justices).  The full court can then deny it or distribute it for Conference where they vote and decided on whether to hear oral arguments on the case.  In both of these cases concerning the natural born citizen argument the application was first denied by Justice Ginsburg.  Once it is denied the first time you are allowed to resubmit it to the Justice of your choice.  In DONOFRIO v. WELLS it was submitted to Justice Thomas who then referred it to full court and distributed it for conference where the application for stay was denied.  In the 2nd case it was resubmitted to Justice Scalia who has now referred it to full court and distributed it for conference on December 12th.  Once again the Justices will vote on whether to hear oral arguments on the case.  You need the votes of 4 of the 9 Justices to get the oral arguments heard.

In all reality this will probably get denied as well because of more external reasons such as the riots and most likely death threats or attempts that will ensue if the Supreme Court considers stripping Obama of being the next President.  Just imagine the uproar this would cause.  The make up of the court is favorable to the liberal cause.  Even though 7 of the 9 Justices were appointed by Republican Presidents, 4-5 of them are actually liberal.  This is another case of the Republican party shooting themselves in the foot.  Presidents Ford, Reagan and Bush Senior are to blame for this as once again the Republican party tried to be too appeasing.  Ford nominated John Paul Stevens, Reagan nominated Anthony McLeod Kennedy, and Bush Senior nominated David Hackett Souter who have all ended up voting liberal.  Clinton nominated two more liberals in Ruth Bader Ginsburg and Stephen Gerald Breyer.  The more conservative Justices are Scalia, Thomas, Roberts and Alito.  If even one of the previous 4 don’t vote to hear the oral arguments the application for stay is dead.

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Ok now that that is all explained lets get on to the actual natural born citizen argument.  The basic point of the entire case is that Barack Obama is not a natural born citizen and therefore cannot be President.  The criteria for being President is outlined in Article 2, Section 1 of the United States Constitution. It reads as follows:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

It is import to read this closely but it says that to be President you must 1) be a natural born citizen, 2) be at least 35 years old, and 3) have lived in the United States for 14 years.  This whole case comes down to what the founding fathers meant by natural born citizen.  You are probably noticing the “or a citizen of the United States, at the time of the Adoption of this Constitution.”  This is widely known as the “grandfather clause” because it allowed the Founding Fathers to be President.  In other words it allowed every President born before the Constitution to be eligible whether their parents were citizens of another country or not but everyone after that had to be a natural born citizen, not just a citizen.  The reason for you having to be a natural born citizen was because the Founding Fathers were worried about a future President having split allegiances to another country.  They did not want a President who was born under the jurisdiction of a foreign country (especially Great Britain) so they put in the “natural born citizen” rule.   This clearly shows the Founding Fathers made a distinction between a regular citizen and a natural born citizen.  This is why Arnold Schwarzenegger can never run for President, he is just a regular citizen because he was born in Austria to Austrian parents under Austrian jurisdiction i.e. he was born an Austrian citizen.

Here is where it gets sticky.  The Founding Fathers never laid out wording as to the exact definition of “natural born citizen” in the Constitution.  Many feel this is because it was obvious and well known at the time.  Remember the Founding Fathers made clear in other writings they did not want a future President to have a possible split allegiance.  This is why many feel to be a natural born citizen you must 1) be born on U.S. soil (this is not really disputed by anyone, especially in Obama’s case, however this could have ramifications to John McCain) and 2) both your parents must have been U.S. citizens at the time of your birth.  Not natural born, just regular citizens.  The thinking is if both your parents were U.S. citizens (by fulfilling whatever the criteria and processes were at the time) when you were born then it was clear your allegiance was to the United States only.  If one or both of your parents were not U.S. citizens, and instead still citizens of somewhere else (most likely wherever they were born or had lived the first part of their life) then the kid might end up with a split allegiance due to the parents.  Imagine that an American woman had a baby with a male tourist from France.  What if the Frenchman had a hand in raising the boy somehow (maybe poisoning him against the U.S.) or the kid grew up and found out he was really half French and felt a certain attachment to the country.  The Founding Fathers saw this and similar scenarios as possible in causing a conflict in interest in the boy.

This is why Barack Obama is not a natural born citizen.  While his mother was a U.S. citizen at the time of his birth, his father was not.  His father was not an American citizen but from Kenya (born and raised) and therefore a British subject (Kenya was under British control back then).  This means Barack was born with split and competing loyalties.  Actually British law even stated (and still does) that a kid born to a British subject outside of their boundaries was a British subject by descent .

The opposite argument is that “natural born citizen” just means you must be born on U.S. soil.  The latter argument means an illegal immigrant could run across the border to have her kid on U.S. soil and he could later become President.  Or imagine a more extreme scenario where Hitler had a kid and somehow snuck his wife into the U.S. where she gave birth.  Hitler’s kid could then be President.  It is hard to believe the Founding Fathers meant to allow this, especially with their worries about Great Britain taking back control.  Not only that, this is where it really gets interesting because this argument means that any person born on U.S. soil is granted natural born citizen status despite the 14th Amendment.

The 14th Amendment deals with electing Senators and Representatives to Congress.  Section 1 is the important part because it defines citizenship in the U.S.:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Here is why this is important.  If the writers of the 14th amendment meant to say anybody born on U.S. soil was a natural born citizen, why didn’t they say “natural born” as was done in Article 2, Section 1?  Instead they said “all persons born or naturalized in the United States…are citizens of the United States.”  Notice they are just citizens not natural born.  By the way naturalized is the process of becoming a citizen like when an immigrant goes through all the steps and the final test to become an American citizen.  Another quick piece about the amendment, one of the framers of the 14th Amendment, John Bingham, actually said that a natural born citizen was someone born in the U.S. to parents who were both citizens.  That is HUGE.

There is more evidence as well.  It is the case of the UNITED STATES v. WONG KIM ARK in 1898.  This case had to do with deciding whether a child born in the United States to two Chinese citizens was an American citizen.  The court decided he was a citizen.  However the important point is that the court also discussed what a natural born citizen was and mentioned other cases that talked about the term (very important here is MINOR v. HAPPERSETT ) and then held that the kid was NOT a natural born citizen. Once again HUGE. EDIT: Read this quote from Donofrio (from his blog).

…they said, in their holding that Wong Kim Ark was a “citizen”. They never said he was a “natural born citizen.” They could have said that but they didn’t. Furthermore, in Justice Gray’s discussion of the “Minor” case, it was explained that a nbc [natural born citizen] was a person born in the US to parents who were citizens… and in MINOR the court stated that persons born in the US to foreign parents were the subject of controversy.

Now there is one more thing that you probably have never heard about.  I will discuss it briefly and refer you to somewhere else to get the details but it is quite interesting and was just discovered (like a couple days ago).  Chester A. Arthur was the 21st President of the U.S. and became so after James Garfield was assassinated (interestingly by a crazed Arthur supporter).  Anyway it now appears that Arthur was actually in the same situation as Barack Obama.  His mother was a U.S. citizen born in Vermont but his father was an immigrant, a British subject from Northern Ireland, who first moved to Canada and then to Vermont where Chester was born.  Only problem is that Chester’s father didn’t become a U.S. citizen until 1843, Chester was born in 1829.

This made Chester’s father a British subject at the time of Chester’s birth just like Obama’s father.   This also made Chester a British subject by descent just like Obama.  But here is why that is important.  This fact about Chester’s father was not known back when Arthur was President.  Interestingly enough there was a big stink being made that Chester was actually born in Ireland and couldn’t be President (just like Berg is doing now to Barack).  The kicker is that for some reason Chester decided to start lying about when his father came to the U.S. even though nobody was making a stink about it.  He lied about how old his father was when he came over, how old his father was when they had Chester, where his father got off the boat when he immigrated, leaving out that his father and mother lived in Canada for a while, and more.  In addition for some reason Chester decided to burn all his papers one day.  Why would Chester be lying and covering up those details about his father unless he knew he couldn’t be President if someone found out his father wasn’t a citizen when he was born? There would be no reason to say for example that his father came here when he was 18 instead of 23 or leave out the fact his mother and father had lived in Canada before his father moved to the U.S. if he was worried about them thinking he was born in Ireland (which was completely debunked).  I suggest you read this for more details and a much better explanation.

EDIT: There is another aspect to Chester Arthur’s importance in all this.  If you go back up to where I showed you the 14th amendment you will see the phrase “subject to the jurisdiction thereof.”  Donofrio believes that Justice Gray, who wrote the seminal opinion in the UNITED STATES v. WONG KIM ARK, gave a faulty and perhaps purposely inadequate analysis of that phrase.  He surmises the possibility that Gray, who was appointed by Chester Arthur, wrote his opinion with dubious motivations since it seems the WONG KIM ARK opinion he wrote “seems tailor made to the circumstances of Arthur’s birth.”  Apparently there is the possibility Chester shouldn’t have even been considered a citizen, let alone a natural born citizen, due to United States law in 1829.  The 14th amendment didn’t exist until 1868.

Let me go further, I believe Donofrio is saying this, but let me warn this stuff can get confusing but this is what I think he is saying.  As you saw in the quote from Donofrio earlier he said in WONG KIM ARK that they could have said he was a natural born citizen but did not instead just defining that he was a citizen despite discussing what a natural born citizen is.  Now precedence in Supreme Court cases is set by what they do say, not what they don’t say.  Because they didn’t officially say what a natural born citizen is despite discussing it thoroughly KIM WONG ARK is moreso a piece of evidence than a precedence for the claim a natural born citizen is having two parents as citizens.  However I think Donofrio is saying, why would Justice Gray not actually say what a natural born citizen was despite the discussion and the citing of the MINOR case? Did Gray avoid this because he knew about Chester’s parental situtation?  Considering Gray was appointed by Chester if the court had come and actually said “A natural born citizen’s parents both have to have been citizens” did that mean Gray’s appointment as a Justice was illegal and should maybe be voided?

If you have managed to read through all this I hope I did a half decent job explaining the argument.  One note to be made is that the UNITED STATES vs. WONG KIM ARK in conjunction with the Chester Arthur evidence was not in the DONOFRIO vs. WELLS case but is in the one that will be considered on the 12th.  To me it is quite clear from all this that a Natural Born Citizen means you were born on U.S. soil and both your parents were U.S. citizens and were not citizens of a foreign country.  Please go to Donofrio’s website for more information on all this.  I suggest reading the comments as well because Donofrio clears up a lot of the questions people have posed.

UPDATE 12/11:

This was just unearthed as another piece of evidence as to what a natural born citizen is.  It comes from the books called “The Law of Nations” by Vattel:

§ 212. Citizens and natives.
The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, 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 might have bearing in the case because this book was actually cited in the Supreme Court’s opinion on DISTRICT OF COLUMBIA, ET AL., PETITIONERS v. DICK ANTHONY HELLER as a legal source.

I warn, I am not a supreme court justice or a lawyer, but that seems like it could be a big piece of evidence.