Mr. Donofri's view on Natural Born Citizens

This post is in response to Leo Donofrio's article on World Net Daily last week regarding Natural Born Citizenship. Based on my reading of the underlying case law, Mr. Donofrio's discussion of U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) in support of the notion that children born of foreign nationals is not entirely accurate.

He selectively quotes part of a paragraph from what is an extremely long and detailed decision.

Mr. Donofrio's selection:

That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: "Allegiance and protection are, in this connection (that is, in relation to citizenship), reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. ... 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. ..."

The paragraph as it appears on Lexis:

That neither Mr. Justice Miller, nor any of the justices who took part in the decision of The Slaughterhouse Cases, understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment, is manifest from a unanimous judgment of the court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: "Allegiance and protection are, in this connection" (that is, in relation to citizenship,) "reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance." "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 [*680] parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or [***902] 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. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are [**469] themselves citizens." Minor v. Happersett, (1874) 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship.

The court did not define "natural born citizen" as only children born in the US of US Citizens. It states that is has never been in question, but that there have been questions whether children born of forereign parents in the US are natural born citizens. The court also states they are not resolving that question.

The court states earlier that at Common Law in effect at the time the adoption of our Constitution, children born of foreign parents were considered natural born subjects/citizens, and that as of this desion, that common law rule continued to prevail:

It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction, of the English Sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign State, or of an alien enemy in hostile occupation of the place where the child was born.

III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established. 169 U.S. 649 at 658.

Further, at 674-675, the court states:

Passing by questions once earnestly controverted, [**467] but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional [*675] Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.
V. In the fore front, both of the Fourteenth Amendment of the Constitution, and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.

The Common Law of England was the law of our nation at the time of the adoption of the Constitution and has only been changed through legislative action and subsequent court decisions. It is should be noted that though the Court does not explicitly say that Ark was a natural born citizen, nor does it explicitly state that natural born citizens are limited to those born in US of US citizens. It merely states children born of foreigners within the bounds of the US are citizens. The questions of "natural-born citizenship" was not before the Court. Neither Minor or Ark state only children born in the US of US citizens are natural born citizens. However, the court in Ark seems to imply that at Common Law in place at the time of decision and the signing of the Constitution granted natural-born status to children born in the US to foreigners.

With regards to the translation of Mr. Vattel's "Law of Nations" stating that "The natives, or natural-born citizens, are those born in the country, of parents who are citizens." The Ark court specifically addressed the belief that the citizenship of children follow their parents. At pg 666-667, the Court specifically found that there was not such a law of nations at the time of the adoption of the constitution or the 14th Amendment: "There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there was any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion." It is up to individual nations to determine their citizenship rules, so Mr. Vattel's statement has little bearing. I would also note that Mr. Donofrio's reliance on Chief Justice Marshall's adoption of Mr. Vattel's language in The Venus, 12 U.S. 253, 289 (1814), is perhaps misplaced as the Chief Justice was writing in concurrence, and his adoption of Mr. Vattel's language was not the decision of the court, a fact that is not noted. Mr. Vattel is also mentioned by the dissenting Justice in Ark, not by the majority.

The arguments in Mr. Donofrio's article are weak and a complete mischaracterization of the decisions in Minor, Ark, and The Venus. None of these cases stand for the proposition that a child born in the US of foreign parents is not a natural born citizen and raise good arguments for the opposite proposition, that any child born in the US, regardless of parentage, is a natural born citizen of the United States.

Is he a natural born citizen?

That is the question that the extreme right continues to ask, especially the people over at Worldnetdaily.

Basically, it really comes down to is either (a) Barack Obama is not a natural born citizen, is ineligible to be President, and got a number of assorted officials to go along with it; or (b) He and his guys are even sharper than we thought and have managed to keep the extreme right really distracted on basically a nothing issue.

Apparently, having a printed birth certificate certified by the state of Hawaii isn't enough for them.  I have to say, if there is another issue to get some of your adversaries to focus on, this is it.  Bravo.  This has been a headline in one form or another over at Worldnetdaily and other right wing websites since almost as long as I have been checking them out.  I am willing to bet that the people on Team O have a brand spanking new "long form" (whatever the hell that is, the one shown looks like a Hawiian version of my birth certificate) birth certificate and are laughing their way all the way to carbon emission caps and universal healthcare.  

Election Predictions

Everyone else is doing it, so why not me.

1st, we will know by 9:15 eastern who the next President is, that is when the majority of the east coast and Colorado have closed. Once we know Ohio, PA, FL, NC, and CO, we will know who it is (I predict we will know even earlier, but it is possible that the 4-Corners could be the deciding factor).

2nd, I predict Barack Obama with 52% of the popular vote and 321 Electoral Votes.

3rd, Democrats will control the Senate, but only with 57 Senators, not their desired 60.

4th, Democrats will control the House with 254 Congressmen and Congresswomen.

Finally, these are all guesses, just like every other prediction. If I am right on any but the first one, I will be incredibly impressed with myself.

Don't forget to vote!

Guilt by Association Continues...

I don't know: Is The Crucible on the list of books Sarah Palin allegedly tried to ban? It is beginning to get a little ridiculous with this whole guilt by Association for Obama. Now they are trying to tie him to Saddam Hussein. Ignore the fact that the US Government basically propped Saddam up and that people close to Reagan, Bush I, Bush II, and McCain have had dealings with Saddam and or his government. We will just stick to the two big ones:
1. William Timmons: "William Timmons, the Washington lobbyist who John McCain has named to head his presidential transition team, aided an influence effort on behalf of Iraqi dictator Saddam Hussein to ease international sanctions against his regime."
2. Donald Rumsfeld: "With the Iran-Iraq war escalating, President Ronald Reagan dispatched his Middle East envoy, a former secretary of defense, to Baghdad with a hand-written letter to Iraqi President Saddam Hussein and a message that Washington was willing at any moment to resume diplomatic relations. That envoy was Donald Rumsfeld."

If you are going to attack someone on something, make sure you aren't potentially guilty of the same thing. Another good example of this is accusing the other Candidate of working with a group that might have fraudulently registered voters when you have been paying a guy who rips up voter registration forms or changes the party affiliation on them.

Trooper Gate

I heard last night and read today in the NYTimes that Todd Palin answered his interrogatories and that others involved, including the special assistant to the former Public Safety Commissioner of Alaska, are speaking out about how much communication there was between Governor Palin's Office and the PSC's Office. It is estimated that in 19 months, the Governor's Office, the Governor, or the Governor's Husband contacted the PSC's office 36 times regarding the Governor's former brother-in-law, Trooper Wooten.

I had no way of knowing whether Wooten is truly a present threat to the Governor or her family, I just think they went about dealing with it in the wrong way. He went through a nasty divorce with the Governor's sister. There were some allegedly nasty things said, having working in Matrimonial law, I would not be surprised if most of them were true. Divorce can be nasty, it brings out the worst in people. The was evidently enough for a Domestic Violence Restraining order to be filed, but it was quashed because of lack of evidence. The death threat was not even communicated to the target, Governor Palin's Father, until 2 weeks to a month after it happened. The threat was not even communicated to authorities immediately, something most people would do if they thought the threat was credible. If you tell the police 6 months after the death threat is made, they are not going to take it very seriously because they will not believe you took it seriously. Wooten does not seem to be a great person. Internal affairs found that he did threaten his ex-father-in-law's life, illegally shot a moose, drove with an open container in his squad car, and tasered his son. Honestly, with those violations of laws and trooper policy, it would not have been uncalled to either terminate him with cause or request his resignation.

There were other avenues that Governor Palin's family could have pursued without at least the appearance of using the influence of the Governor's Office to get Trooper Wooten fired. I honestly don't have a problem with the Governor's Office requesting that Trooper Wooten not be assigned to events she is attending with her family, but as Governor and a potential national leader, you should be able to deal with your Ex-brother in law. But if the Governor's office got involved beyond a possible threat to the Governor or her family, which there has been no indication of problems since prior to her becoming Governor, it was inappropriate. If there have been problems since, should have been handled through the legal system.

As for the investigation of the dismissal of the Public Safety Commission over his refusal to fire Trooper Wooten, Sarah Palin fed the fire for this investigation. When the legislative investigation began in July, Governor Palin welcomed the probe saying she had nothing to hide and pledged her and her staff's cooperation with the legislature in its investigation. Then she got tapped for McCain's VP. All of the sudden, not 2 days after her and the McCain campaign's most recent statement of cooperation, Governor Palin requested that the personnel board review the dismissal, not the legislature, and directed her lawyer to get the legislature to drop the investigation. That is why we have Trooper Gate. That sent a signal to every blogger, newspaper reporter, and non-republican (and probably some of them too) that something was wrong here. If not actually impropriety, then at least the appearance of it and these people want to know what happened before they decide whether they want Governor Palin one heart beat from the presidency.

The question of whether as Governor, Palin improperly used her influence and fired a man who did not give in, is a valid one and should be investigated. It is not like Bay Buchanan's outrageous suggestion on CNN Election Center last night that there should be investigation into whether Barack Obama was a drug dealer on the streets of Chicago, something of which there is NO indication of anywhere (and if there was, someone would have come forward with it).

Note: Critique me or not, my rendition of what happened or allegedly happened in the Divorce and Investigation of Trooper Wooten came from Wikipedia.

Federal Taxes paid v. Benefits received

So I am sitting here watching McCain talk about how Obama has requested over $900 Million in federal funds for Illinois. (He did not mention whether this was in 2007, 2008, or over his tenure as a Senator). I will take that figure as about accurate because really I am just concerned with how much states pay and how much they receive in federal money. To this end I visited The Tax Foundation website to check out the 2005 numbers. I can't imagine any of the candidates has had much time to get pork for themselves in 2008. Here are the numbers for the 4 state who have candidates in this presidential election:

Taxes Paid Funds received (in Millions)
Alaska $4,830 $9,230
Arizona $35,988 $44,639
Delaware $6,662 $5,495
Illinois $99,776 $80,778

Alaska received $1.84; Arizona recieved $1.19, Delaware received $.77, and Illinois received $.75 for every dollar sent to Washington. Now that is only 2005, the Foundation does not have more recent numbers yet and I don't have time right now to track down more recent numbers. However, the ratios probably have not changed that much. I will find them when I can or if you have a link, please post. If the ratios are still the same, it is really hard for the candidates from receiver states to call out the candidates from donor states on pork.

It might be interesting to take a look at the Ranks in states for money received per dollar paid in federal taxes. You might notice how Red the top is and how blue the bottom is.

Corporate Campaign Contributions

So there is all this talk about donations by Fannie and Freddie to the Obama campaign. Worldnetdaily.com has Obama taking $126, 349 from EMPLOYEES of Fannie and Freddie based on information from Opensecrets.org. (My research on opensecrets, a fabulous website btw, came up with about $109,000, including every election back until 1992, but whatever). They just seem to forgo mentioning that McCain took money from Fannie and Freddie's employees as well. It was only $17,900 according to my calculations, paltry yes, but still worth mentioning. It kind of gives you a air of credibility as a media outlet when you mention both sides. So here you go, right from John McCain's top contributors and Barack Obama's top contributors:

McCain

Merrill Lynch	$298,413
Citigroup Inc	$269,251
Morgan Stanley	$233,272
Goldman Sachs	$208,395
JPMorgan Chase & Co	$179,975
AT&T Inc	$174,487
Blank Rome LLP	$150,426
Credit Suisse Group	$150,025
Greenberg Traurig LLP	$146,787
UBS AG	$140,165
PricewaterhouseCoopers	$140,120
US Government	$137,617
Bank of America	$129,475
Wachovia Corp	$122,846
Lehman Brothers	$117,500
FedEx Corp	$113,453
Gibson, Dunn & Crutcher	$104,250
US Army	$103,613
Bear Stearns	$99,300
Pinnacle West Capital	$97,700

	Obama Goldman Sachs $691,930 University of California $611,207 Citigroup Inc $448,599 JPMorgan Chase & Co $442,919 Harvard University $435,769 Google Inc $420,174 UBS AG $404,750 National Amusements Inc $389,140 Microsoft Corp $377,235 Lehman Brothers $370,524 Sidley Austin LLP $350,302 Moveon.org $347,463 Skadden, Arps et al $340,264 Time Warner $338,527 Wilmerhale Llp $335,398 Morgan Stanley $318,070 Latham & Watkins $297,400 Jones Day $289,476 University of Chicago $278,885 Stanford University $276,038
	Of note is that McCain's number 1 (employee) contributor is Merrill Lynch, another one of the companies that recently had a collapse. But basically, it should just be pointed out that both of these candidates take money from wall street. It is kinda tough for either to accuse the other of being in bed with Wall Street without admitting their own connections (both took a lot of money from Lehman Brothers). This is politics and the money is (was) on Wall Street. I would also point out that: *McCain has full disclosure of 85.8%, partial disclosure of 3%, and no disclosure of 11.1% of his contributions.
	*Obama has full disclosure of 92.4%, partial disclosure of 1.8%, and no disclosure of 5.8% of his contributions.

Polls

When you get all worked up about the meaning of all of this constant polling just take a look at the chart of the Gallup Daily Presidential Poll. It reads more like two erratic heart beats than any predictor of who is going to win the presidential election. Polls are useful in that they tell the political strategists where they have to focus their efforts in order to win over undecided voters. Yes, McCain got a big bump after the Republican Convention, this will settle out, just as Obama's bigger bump did after the start of the Republican Convention.

In the end, the day before the election, unless something extremely shocking happens, this poll will still read with both candidates in the 40s, probably with a 3-4 point difference between them (flip a coin to see who is in the lead) and this election will be decided by the people Gallup does not call on a daily basis.

Saturday Night Live

OMG, when the season premier of SNL opened, I swear I wasn't sure if that was Tina Fey or really Sarah Palin replacing Barack Obama as he declined to appear due to the Hurricane. The opening skit will go down as one of the best in SNL history.

Hillary Clinton's 2008 Convention Speech

I have to say I was very impressed. I thought she did a fantastic job of speaking of her accomplishments, bashing and comparing McCain to Bush, and encouraging her supporters to vote for Obama.

The best part of the speech, which I hope every Hillary Clinton support who has not yet decided to vote for Obama in November reads, was:

"I want you to ask yourselves: Were you in this campaign just for me? Or were you in it for that young Marine and others like him? Were you in it for that mom struggling with cancer while raising her kids? Were you in it for that boy and his mom surviving on the minimum wage? Were you in it for all the people in this country who feel invisible?"

I hope her supporters get that message loud and clear. What is important is that you vote for the candidate who has the same goals as you and the person you supported. Barack Obama is that person for Hillary Clinton's supporters. It is not John McCain.

Al Gore for President?

August 26, 2008-Denver, CO

The Democratic Race for President has continued to keep the attention of America with a continued close and one might say, “bloody” race between Barrack Obama and Hillary Clinton. John Edwards 38 Delegates have turned into the linchpin for the eventual candidate and after four unsuccessful ballots, there has been no winner due to John Edwards holding onto his Delegates. With no change of either candidate winning the nomination without Mr. Edwards’ Delegates the Candidates and party leaders were in closed session until 4 AM attempting to settle the matter once and for all. What came out of that meeting is a shock to the entire party and the nation, prompting an unofficial initial, “Crap” from Senator John McCain.

Facing a deadlock and two candidates who have done all but enter the Octagon and engage in combat, Senators Clinton and Obama, and former Senator Edwards have released their delegates. In addition to this, both Senator Clinton and Senator Obama have withdrawn their names from consideration. What would have caused the Senators not only to release their delegates but also withdraw from the race after months of one of the hardest fought Democratic Primary Seasons in history? The arrival of the Democratic Party’s knight in shinning (yet biodegradable) armor, former Vice President Al Gore.

Al Gore has put his name forward to the convention for consideration as the Democratic Candidate for President. He is now the only candidate up for consideration and will be the Democratic Candidate for President.

This is prompted speculation that this had been the Democratic Plan all along. Let two highly qualified candidates fight it out for months and bloody each other only to have an unscathed and certainly popular candidate come out of no where at the last moment. After McCain’s initial comment his campaign spokesman had this to say:

“This is just another blatant attempt by the so called, “Democratic” Party, to undermine the Democratic Process. First it was not seating delegates from two states and now nominating a candidate who has no delegates who the American people have never had an opportunity to vote for as the Democratic Candidate. They should be ashamed of themselves.”

Strong words from the McCain camp, but one could not help notice the trembling hands of the spokesman while making that statement. This is a completely new race for the Presidency. The next few weeks will tell whether this was one of the greatest political moves of all time, or one of the worst.

Hey, it could happen…

Gas Tax

Suspension of the Gas tax for the summer do little to help people at the pump. The Congressional budge office predicts that it would save maybe $30 per family over the summer. It would have a minimal if any effect on the price of goods (prices have been increasing because of transportation costs) because it is a short term tax break and would be so minimal for truckers. Yes, Obama was (possibly) incorrect that Hillary's plan to suspend the tax for the summer would increase Oil Company profits. However, that still does not mean it will decrease the costs of anything. Sure we won't be paying the gas tax, but oil companies, knowing a tax hit is coming to them would be sure to keep pre-tax prices high in order to retain their profits for their shareholders. Overall, such a short term fix woudl have little or no effect.

I propose a slightly different method. Suspend the diesel tax for a period of at least a year (with a rider that says it will be reinstated if the price drops below a certain set amount). This would have a significant effect on the costs of good becuase it would lower transportation costs and be in effect for long enough to actually affect prices. You could do the same for air plane fuel. The price of truck and airplane transportation has a much greater potential to cause serious harm to our economy than gasoline prices. The high gasoline prices are already causing people to buy new more fuel efficient cars replacing some of the higher fuel cost vehicles. However, if consumer prices continue to rise due to the diesel and airplane fuel costs than people will not even be able to afford more fuel efficient cars.

Something needs to be done, but a short term suspension of the gas tax is not the answer.