12/17 I.O. update:
1. The essence of the Donofrio v. Wells case (NJ) is contained in the Wrotnowski v. Bysiewicz case (CT). In both cases, injunctions were denied, but this may be due to a jurisdictional issue [edit: or an issue of standing]. In September, a federal court ruled against a somewhat similar challenge (to John McCain) based, oddly, upon both its particular merits and an overall, jurisdictional observation. Mysteriously, the Donofrio case has remained listed as "pending," somehow, which may or may not have to do with the jurisdictional matter.
2. A research work in process, this article failed to address the most central document besides the Constitution itself, to the understanding of the original intent and thereby meaning of the "natural born Citizen" criteria, the letter from John Jay to George Washington, July 25, 1787. In it, Jay cites the reason for the criteria being one of national security, that is to guard against a "Commander in Chief of the American army" having foreign allegiance in the way anyone might, who is not a natural born Citizen. This lends essential merit to the dual natural born Citizen criteria pointed out in this article, as a strategist in matters of defense and security would naturally know. Metaphorically, in a neighborhood where crime is high, one does not lock the front door (born in U.S. territory) and leave the back door wide open (commonly and "naturally" understood national allegiance by hereditary right). When security is the concern, one thoroughly guards all of one's vulnerabilities which are pertinent and feasible to be made secure.
12/5/2008
The Donofrio Case: "Natural Born Citizen" -- not about Obama's birth certificate, but the one that goes, "We the People...."
Today, before the United States Supreme Court lies
Leo Donofrio v. Nina Mitchell Wells, New Jersey Secretary of State. This suit was received by Justice Thomas and by the determination of the
entire court, it is scheduled for conference on Friday December 5. This conference is held to decide what, if any, further steps should be taken. Only two of these steps would be to intervene in the process of selecting the president, or to hear oral arguments.
Essence of the case
By this case Barack Obama, John McCain, and Roger Calero (of the Socialist Workers Party, on the New Jersey ballot) do not qualify as “natural born Citizens” under Article 2, Section 1, Clause 5 of the Constitution, which states the following:
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.
Standing
Other cases against Obama's candidacy have been rejected by various courts, due to a private citizen's apparent lack of standing to sue a candidate. However, this case is an action against the Secretary of State of New Jersey and as such, has precedent, as Donofrio relates. He originally sought to motivate the Secretary to qualify or disqualify these three candidates on the New Jersey ballot. Donofrio also cites 2000's famous Florida case, Bush v. Gore, as precedent for a state case regarding a presidential election to be brought to the Supreme Court for emergency action.
Merit: reasoning behind Donofrio v. Wells
To interpret the U.S. Constitution with intellectual honesty, one must maintain the integrity of the meaning of the Constitution. That means interpreting the letter of the law: its words and phrases, based upon the immediate context of the Constitution itself, any explanations of the framers, traditional meaning inherited by the framers, and the generally accepted, legal meanings of words and phrases in use at the time of its drafting. Further, attention is to be paid to the spirit of the law, by understanding the purposes of the framers and the results they sought or sought to avoid, as they drafted each element of the Constitution.
In view of these considerations, being a “natural born Citizen,” here requires meeting both of these two criteria: 1. citizenship must be passed on by the constitutionally pertinent principle of natural law, which assumes that citizenship is inherited from one’s father’s citizenship and, 2. citizenship must be granted by means of being born in the actual territory of the United States. Accordingly, to maintain the original intention of the Constitution's framers, a U.S. President is to be free of competing allegiances with other nations, from birth onward. To cite Donofrio's own words from his blog:
The Framers wanted to make themselves eligible to be President, but they didn't want future generations to be Governed by a Commander In Chief who had split loyalty to another Country. [I.O. ed., letter by John Jay] The Framers were comfortable making an exception for themselves. They did, after all, create the Constitution. But they were not comfortable with the possibility of future generations of Presidents being born under the jurisdiction of Foreign Powers, especially Great Britain and its monarchy, who the Framers and Colonists fought so hard in the American Revolution to be free of.
According to this case, Barack H. Obama II is not qualified, because his father,
Barack H. Obama I, was a citizen of the United Kingdom as a Kenyan. Kenya was a British colony at the time of Obama II’s birth in 1961. This citizenship was conferred to Obama II by U.K. law. Further to this case is the apparent fact that Obama II became a citizen of Indonesia, when he lived there as a child with his mother and adoptive father,
Lolo Soetoro. This would mean Obama's U.S. Citizenship status was revoked, since Indonesia had no dual-citizenship provision with the U.S.A.
According to this case, John McCain is not qualified, because he was born in Panama or the Panama Canal Zone, which was a protectorate of the United States and has never been a territory of the Untied States, even though his parents were U.S. Citizens.
According to this case, Roger Calero is not qualified, because he was born a citizen of Nicaragua, to foreign parents, on foreign soil. The mere fact that Roger Calero was on the ballot in five states indicates to the Supreme Court and the nation, that the process of qualifying a presidential candidate is broken and intervention is necessary.
Merit: context, corroboration, and case law
Corroborative to this case, the Constitution's
Article 1, Section 8, Clause 10 states that a power of Congress is to "define and punish... offenses against
the law of nations."
The Law of Nations has been international law, which as documented by
Emmerich de Vatel (1758) states, in
Chapter XIX, paragraph 212, "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 rig
hts."
Vatel follows with paragraph 215, in which he asserts, "It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed.(59) By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say 'of itself,' for, civil or political laws may, for particular reasons, ordain otherwise."
The chief framer of the related 14th Amendment of the Constitution, John A. Bingham corroborated this dual criteria stating, "every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen." An extensive analysis citing this is "Defining Natural-Born Citizen," by P.A. Madison, The Federalist Blog.
Since then, the case of Perkins v. ELG, U.S. 325 (1939) provides precedent for requiring these two criteria, for one to be called a "native born citizen" (see, "The Law -- Perkins v. ELG," blog, The Betrayal).
St. George Tucker, Justice of the Supreme Court of Virgina, wrote a version of the authoritative Blackstone's Commentaries: With Notes of Reference to the Constitution... which became a recognized resource for determining the framers' original intent. In his Volume 1 -- Appendix; Note D, he explained that the Article 2 "natural born Citizen" requirement was purposed to avoid competing allegiances:
That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, whereever it is capable of being exerted, is to he dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. It was by means of foreign connections that the stadtholder of Holland, whose powers at first were probably not equal to those of a president of the United States, became a sovereign hereditary prince before the late revolution in that country. Nor is it with levity that I remark, that the very title of our first magistrate, in some measure exempts us from the danger of those calamities by which European nations are almost perpetually visited. The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora's Box.
If anyone knows of an applicable contemporaneous definition of "hereditary right" which does not include patrilineal descent, he is welcome to inform this writer. Certainly, this applied to sons of subjects of the United Kingdom (and the fact that one subject would travel abroad to declare himself a "Citizen of the World" before hundreds of thousands might also have provided relevant warning).
Intended result of this case
The Donofrio suit calls for a stay of the Dec. 15 Electoral College vote, until a constitutionally acceptable means is attained, of presenting the Electors a set of qualified candidates.
During or after their Dec. 5 conference, the Supreme Court could decide upon a number of directions. Their next step may be revealed this very day, or on Monday, Dec. 8, or at some other time. A book could be written of the many potential outcomes -- and historians will write libraries about one set of results, in their hindsight.
"Post Script" in HTML
Leo Donofrio reports that numerous obstacles have been intentionally placed in the way of his petitioning the courts, in both New Jersey and at the Supreme Court. He also names public officials who have at times attempted to mislead him and by their treatment of his case, have obstructed his path to the Supreme Court. That is another story and not an undramatic one.
Donofrio has had three blogs -- and Internet harassment, as follows:
- http://blogtext.org/naturalborncitizen -- used through November 21, until its blog service was hit by a denial of service attack, bringing it down (servers have been repaired)
- http://thenaturalborncitizen.blogspot.com -- used through November 27, until it became clear that Google has not been at all swift to remove a "flag page," inappropriately citing that blog for "possible Blogger Terms of Service violations"
- http://naturalborncitizen.wordpress.com -- hopefully, unmolested as of your reading
This report may be updated as progress is made. For information about the operations of the Supreme Court in such matters, see "A Reporter's Guide to Applications Pending Before the Supreme Court of the United States."
h/t: numerous bloggers and forum posters including FReepers: BP2, joygrace, andMamaTexan
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The Supreme Court has a rule: a litigant may request a stay from the Justice for the circuit where their case arose. If it is denied, they can come back and ask another Justice of their choice. When that happens, the 2nd Justice always refers the matter to the court for conference, so they can get all 9 to agree on throwing it out and be done with it.
If they ever get something they want to grant, they ALWAYS issue an order to the other side requesting opposition. No court would ever issue a stay without having first have heard from both sides.
Obviously, publicity-seeking vexatious litigants have now figured out that they can get a lot of attention by this 2-step process -- its a sure way to get the trash they file listed on the docket. I suppose we can expect this to continue all the way up through January 20th.