The Constitution, which sets forth the principle of rule of law, defines what is unconstitutional, and guarantees freedom of speech and other liberties of a Constitutional republic, and also describes the impeachment power. (How many know of the Jewish roots of this document?) Hypocrisy threatens Constitutional government. Could Israel use a constitution like this? More to the point: would a Convention of States save it, or destroy it? (Example: civil asset forfeiture violates the Constitution.) Quick fixes like Regulation Freedom Amendments weaken it. Furthermore: the Constitution provides for removing, and punishing, a judge who commits treason in his rulings. Furthermore, opponents who engage in lawfare against an elected President risk breaking the Constitution. The Constitution, which sets forth the principle of rule of law, defines what is unconstitutional, and guarantees freedom of speech and other liberties of a Constitutional republic, and also describes the impeachment power. (How many know of the Jewish roots of this document?) Hypocrisy threatens Constitutional government. Could Israel use a constitution like this? More to the point: would a Convention of States save it, or destroy it? (Example: civil asset forfeiture violates the Constitution.) Quick fixes like Regulation Freedom Amendments weaken it. Furthermore: the Constitution provides for removing, and punishing, a judge who commits treason in his rulings. Furthermore, opponents who engage in lawfare against an elected President risk breaking the Constitution.

Obama eligibility: flawed ruling

An administrative law judge in Georgia dismissed four Obama eligibility challenges yesterday. His flawed ruling does not do justice to those cases or to the US Constitution.

Summary of the Obama eligibility ruling

Judge Michael M. Marihi of the George Office of State Administrative Hearings had four cases before him. All asserted that Barack H. Obama should not appear on primary or other ballots in Georgia because he is not a natural-born citizen of the United States. One (Farrar et al. v. Obama) asserted that his birth certificate is a forgery and that he might have forged an identity from, among other things, a false Social Security number. The other three addressed a much more salient issue: whether being a natural-born citizen requires two citizen parents as well as a US birthplace.

In his ten-page ruling, Judge Malihi began with a swipe at Mark Jablonski, attorney for Obama in the case, who did not even show up for the January 26 hearing:

By deciding this matter on the merits, the Court in no way condones the conduct or legal scholarship of Defendant’s attorney, Mr. Jablonski.

In so doing, the judge also said that he had offered to grant a default judgment against Obama for failing to appear or even send Jablonski as a surrogate. The judge further said that he based his decision

on the law, as well as on the evidence and legal arguments presented at the hearing.

That last part is debatable at best.

The Farrar case

Emmerich de Vattel, a forgotten authority in Obama eligibility challenges
Emmerich de Vattel. Portrait: unknown.

Judge Malihi disposed of the Farrar case first. In two pages, he said that attorney Orly Taitz had offered several witnesses, but never “qualified or tendered them as experts.” Greg Rogers at International News said that Taitz made a prima facie case that:

  1. Obama’s Internet birth certificate is a forgery,
  2. Obama is using a false Social Security number, and
  3. Any other person offering so many false identity papers should expect the courts to deport him.

The real problem: the court accepted the witnesses and took their testimony. No one objected to the qualifications of those witnesses. (How could anyone? Obama’s attorney was absent!) And yet, after closing the hearing and waiting for briefs to arrive (and no account says whether anyone sent any), Judge Malihi said that the witnesses were useless, because Taitz forgot to offer them as experts. Why didn’t the judge say that at the hearing? And how can the judge throw out the qualifications after the fact, when no one challenged them at the hearing?

But that is not the most glaring flaw in the ruling. Nor is Obama’s birthplace the strongest argument against him. (No one has offered proof positive that he was born elsewhere than in the United States, for example.) The flaw lies in Judge Malihi’s treatment of the other Obama eligibility challenge claim: that Obama’s parentage disqualifies him.

What is a natural-born citizen?

The Welden, Swensen and Powell cases turned on what being a natural-born citizen really means.

For the purpose of this section’s analysis, the following facts are considered:

  1. Mr. Obama was born in the United States;
  2. Mr. Obama’s mother was a citizen of the United States at the time of his birth; and
  3. Mr. Obama’s father was never a United States citizen.

Plaintiffs contend that, because his father was not a U.S. citizen at the timeof his birth, Mr. Obama is constitutionally ineligible for the Office of the President of the United States. The Court does not agree.

To support this disagreement, Judge Malihi cited Ankeny and Kruse v. Governor of State of Indiana, 916 N.E.2d 678 (Ind. Ct. App. 2009). (The judge misspelled that Arkeny.) Messrs. Ankeny and Kruse, acting in pro se, sued the Governor to enjoin him from certifying the results of the Presidential Electors meeting in December of 2008. They contended that neither Obama nor his opponent, John McCain, were natural-born citizens of the United States. (McCain was born in the Panama Canal Zone, which at the time was a United States possession but not within one of the fifty States.)

The Ankeny court, as Judge Malihi quoted it, relied mainly on US v. Wong Kim Ark, an Amendment XIV case. That case held that any person born in the United States was a citizen of the United States, and thus had the right to vote or hold office. But the Wong Kim Ark case said nothing about whether Wong Kim Ark could someday become President. That was the issue before Judge Malihi. (Furthermore, Malihi acknowledged that in a footnote.)

Regarding the landmark Minor v. Happersett case, the Ankeny court essentially said that, though the court recognized the plaintiff as a citizen, the court did not say under what circumstances Ms. Virginia Minor would not have been a citizen. In fact, she was born in-country of two citizen parents. The Minor court said flatly that she was a citizen on that ground.

At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

But the Ankeny court did try to “solve these doubts.” To do so, it turned to Wong and then to English common law.

Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural  born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person “born within the British dominions [was] a natural-born British subject” at the time of the framing of the U.S. Constitution, so too were those “born in the allegiance of the United States [] natural-born citizens.”

The Ankeny court made this critical mistake: it forgot that the Minor court said that as to [that] class of persons born in-country of alien parents, there [were] doubts. How could the natural-born citizenship of a person born in-country to alien parents be in any doubt if this was a settled issue in common law? Part of the problem is that the Ankeny court assumed, incorrectly, that English law was the federal common law. English law is the common law in Indiana, and in most States within the United States. (Spanish law is the common law in Florida and the American Southwest, and French law is the common law in Louisiana.) The federal common law cannot be English law, not if the Minor court held that the natural-born citizenship of one born in-country to alien parents was doubtful.

In fact the real federal common law is the so-called “law of nations.” The best treatment of that is Emmerich de Vattel’s Law of Nations. In that work, Vattel clearly said that a natural-born citizen is one born in-country to citizen parents. The US Supreme Court has cited Vattel in its rulings on natural-born citizenship. See:

  • The Venus, 12 U.S. 8 Cranch 253 253 (1814), a War-of-1812 case defining natural-born citizenship.
  • Perkins v. Elg, 307 U.S. 325 (1939), a case that defines dual citizenship, renunciation, and expatriation.

The Venus ruling certainly was available to the Minor court in 1876.

To be continued…

Related:

External:

Obama eligibility challenge as part of Purpura v. Sebelius, parts one and two.

Internal:

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

candidate, citizenship, constitutional law, natural born citizen, president, Tea Party


Terry A. Hurlbut

Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

Comments (18)

  • Well, at least this clarifies one thing – the birthers won’t be happy with any decision, unless it’s one in their favour.

    The fact remains, Taitz (how much does she charge her clients for all these failed court attempts?) presented weak evidence, that the judge was able to dismiss out of hand. He doesn’t people to object to realise he’s being fed bull.

    I’m guessing now they’ll appeal, or traipse off to another court and Taitz will make another small fortune off the birther movement.

  • Sorry, no. You’ve lost. A judge has just ruled that you have no case. Move on. Obama is eligible as President; you are wrong; ’twas ever thus.

    Unless you are qualified to practice law in Georgia, you have *absolutely no right* to call this ruling “wrong”. To do so is to deny the rights of States that you claim to support.

  • Chicago politics strikes again. Somebody got to the judge. “It would be real unfortunate if something were to happen to your family…”

  • In the words of Terry himself…

    “What you call “a friendly venue” is actually a judge willing to—well, judge. Sorry if you don’t like a judge who doesn’t rule according to your pre-determined conclusions, but that’s the way it is.”

    So even the respected Judge Malihi has ruled that these arguments, evidence and credibility of the expertise behind them are insufficient to declare that Obama is anything other than qualified to run for President.

    If he had disallowed the arguments and witnesses up front you’d be crying foul and bias, but because he gave the plaintiffs a fair hearing in his courtroom and then, well, judged them – that’s somehow showing bad faith or incompetence on his part? Venues don’t get much more conservative than this one, and the case still failed on the merits.

    As I said in other places here, Taitz and the birthers will just move on in their judge-shopping quest until they can find an outlier willing to disregard the huge amount of precedent and consistent rulings from courts across the entire liberal/conservative spectrum. Not likely, but possible.

    Or, they could just employ their constitutional rights and vote the man out of office in a few months in favor of a better candidate. Given the comments about Romney on CNaV, that ought to be a bitter compromise.

  • I’m particularly caught by this early statement: ” And how can the judge throw out the qualifications after the fact, when no one challenged them at the hearing?”

    Weren’t the plaintiffs making a point of how they didn’t WANT a summary judgment? That, despite the President (don’t forget to add “[sic]” if you quote me) not sending anyone to represent him, they (the plaintiffs) didn’t WANT the material simply accepted; they wanted it judged so that it carried more weight?

    Be careful what you wish for…

  • I’m enjoying the irony of the fact that they doomed their case by actually presenting it. If this was really about protecting the sanctity of the Constitution and keeping an ineligible candidate off of Georgia’s ballot, why would they not have just taken the sure thing and accepted a default judgment, instead of presenting the case on its “merits” and running the risk of an adverse decision? It’s almost like their only real concern is what course of action will garner them the most attention.

    The reason the judge can discount witness testimony without anyone objecting to it is because, as he notes in the decision, the Court determines what weight is given to evidence, and the credibility of witnesses is within the sole discretion of the trier of fact.

    How will this decision affect Mr. Laster and Mr. Purpura’s pursuit of their recently-filed motion to recall and vacate? As you noted in a previous article, that motion is largely premised on the proceedings in Georgia, and the outcome in those proceedings now directly contradicts their claim.

    • It doesn’t effect the case in reality. Having read the cases it is clear the Administrative Law Judge ignored the evidence and relied using an obvious flawed Indiana Court ruling. Instead of looking at the original cases Judge Malihi looked at what the “Ankeny v Governor” 916 N.E.2d 678 (2009) and one finds the Judge in that case failed to read the Minor paragraph as written. I find people doing this regularly.

      In Minor the paragraph that people claim redefined “natural born citizen” does no such thing. What it does is reference two types of citizenship. It points out people born in the country of parent citizens are always citizens and this is called natural born citizenship. It then points out these people are always citizenship.

      It then goes on to point out that for people who are NOT natural born citizens they may or may not be citizens. It does not extend the definition of natural born but simply states that some authorities include as citizens people who are not natural born citizens. These types of citizens would be naturalized citizens and Amendment 14 citizens.

      An line by line analysis of the paragraph can be found at

      https://www.conservativenewsandviews.com/2012/02/04/constitution/natural-born-citizen-open-letter/

      When one looks at this ruling and the Ankeny v Governor” 916 N.E.2d 678 (2009) one see an intentional distortion of the Supreme Court ruling and U.S. Constitution.

      Mr Obama’s supporters will follow the standard Alinsky model since history, the U.S. Constitution, and numerous Supreme Court rulings from 1814 on make it clear that Mr Obama is not a natural born citizen based upon the information in the public arena. And it is also important to understand that John McCain is not a natural born citizen either.

      • So if McCain won you’d have been fighting just as hard these past few years to have him removed from office over citizenship?

        Doubtful.

        • Don’t be so sure of that. We’ll never know whether he would have been just as bad as Obama. But had he been HALF that bad…!

          • Well, let’s just say that if the ineptness with which his campaign was run was any indication, then we’d certainly have been worse off under a McCain administration.

            More to the point though, your comment implies that your objection to his qualification to hold office would be predicated on his performance. Did I misinterpret this, Terry, or are you saying that the end justifies the means and that it would be okay to have McCain hold the office illegally (in your definition) as long as you agreed with his policies?

        • As I pointed out elsewhere I probably would never have realized the issue. It was the constant attacks on people challenging Mr Obama eligibility that brought the issue to my attention and lead to my researching the issue. And as a result in any discussion I point out that John McCain is not eligible either. If supporters of Senator McCain had been attacking people like Mr Obama’s have I would started doing the same research and thus be opposing Mr McCain as well. It is the classic “where the smoke there is fire” scenario. Mr Obama’s supporters drew the attention to Mr Obama ineligibility to serve as President.

  • I find it very odd that you attack the court for using common law, when your own basis for rejecting the legal standards of citizenship established in federal law is that it does not hold with obsolete common law regarding citizenship passing through the father.

    If Common is to be taken over Federal (though there seems to be a blank spot rather than a clash) then this judge made the right choice. If Federal is to be taken over Common (obsolete common at that) then this judge made the right choice for the wrong reason. Either way Obama is POTUS.

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