Tracy Fair (who has a lawsuit going in Maryland challenging Mr. Barack Obama’s eligibility to be President) recently posted a comment here:
“My Maryland ballot challenge has the proof that Obama is illegal. Perhaps you should read it and get educated! All sourced by Congressional Records, the Founder’s writings and Supreme Court precedent!”
And the actual brief filed by Tracy contains the statement:
“Overwhelming evidence proves that Barack Obama is not a natural born citizen and was fraudulently allowed to be placed on the ballot by the defendants, even though he is not eligible under federal and state laws.”
The statement certainly sounds good. But it’s simply not true.
Tracy’s brief does raise at least one interesting thing, though, that I hadn’t seen elsewhere before.
Here is my response to Tracy Fair:
Tracy, I do thank you for dropping by and commenting.
You seem to presume, though, both that I need to be “educated” on the subject, and that your brief is going to fill the bill.
You seem to presume that I haven’t already read and studied the full opinions (and some of the dissents as well) of all of the important court cases you cite.
You seem to presume that I haven’t spent many, many hours reading the Congressional debates on the Civil Rights Act of 1866 and the 14th Amendment — in context — for myself.
You seem to presume that I haven’t spent time studying the history of our Constitutional Convention, or made myself familiar with what the Founding Fathers had to say on the subject of citizenship, natural-born and otherwise.
And you seem to presume that I haven’t read what birther lawyers Leo Donofrio and Mario Apuzzo have to say on the subject.
But I have.
I’ve done all of those things in my research on the topic, and a good deal more. I’ve read Ramsay’s essay on citizenship and researched William Loughton Smith. I’ve read Frederick Van Dyne’s book on citizenship, and Horace Binney’s essay, and Vattel in the original French. I’ve researched what Jefferson had to say, and James Madison. I’ve searched through St. George Tucker’s View of the Constitution and Commentaries on Blackstone. I’ve read Bob Barney’s writings on the subject, and Stephen Tonchen’s. I’m familiar with Jacob Howard and James McClure and Jack Maskell and Donald Lutz and George Collins and George Bancroft.
I’ve even looked up who the heck Peter Van Schaack was.
And I know that there were a few people — not many, but a few — who made the same case you’re making today. Probably about the most notable of these was George D. Collins, a San Francisco lawyer, who argued for the government’s position in US v Wong Kim Ark.
Interestingly, this would be the same George D. Collins who a few years later got married in Chicago to the daughter of a wealthy widow, and ran into a few problems when he got back to San Francisco. Specifically, Mr. Collins was accused of being married to two women at the same time. He went before the court and swore that he had never been married to Charlotte Newman, but to her sister. That was fine until Charlotte herself showed up. One day Collins failed to appear for the trial. He had fled to Canada, because there was no extradition treaty for bigamy. Unfortunately, he had also committed perjury, and there was an extradition treaty for that. He was extradited back to the United States and duly sentenced to 14 years in prison for his crimes. There’s no doubt Collins was a skilled lawyer. He appealed the case all the way to the US Supreme Court, but they were not impressed. He did some hard time in San Quentin, eventually emerged, and died an old man during World War II.
But after extensive analysis and reasoning that comports with the vast majority of historical opinion and writing on the subject, the Supreme Court voted Collins and the government down, 6 to 2.
Not really even close. And have you read Fuller’s dissent? I have. It’s awful. And that’s not necessarily entirely Fuller’s fault. It seems that “awful” was about the best the dissenters — the birthers, we could say — could do.
So about the only significant thing in your brief that was new to me was the speech by President Chester A. Arthur in December 1884.
Let me be clear here before I comment on President Arthur’s speech: Literally every other significant point in your paper has already been addressed and found wanting, by myself and/ or other people.
I would refer you to my recent 5-part article on Minor v Happersett, my article on US v Wong Kim Ark, my article on Horace Binney, my article on John Bingham, the full debate I participated in with Mario Apuzzo, and my bottom-line conclusions.
There is plenty of evidence there to conclude that the two-citizen-parent claim does not have the slightest bit of merit to it whatsoever. I think you will find every significant point from your entire brief already addressed, with the exception of your words regarding Chester A. Arthur.
But President Arthur’s speech was new to me. So let’s talk about that.
Was Chester A. Arthur Really Inviting Congress to Find Him Ineligible and Impeach Him? Or Did He Have Reference to Something Else?
In December 1884, President Arthur made a speech in which he said, among other things:
“An uniform rule of naturalization such as the Constitution contemplates should, among other things, clearly define the status of persons born within the United States subject to a foreign power (section 1992) and of minor children of fathers who have declared their intention to become citizens but have failed to perfect their naturalization. A just and uniform law in this respect would strengthen the hands of the Government in protecting its citizens abroad and would pave the way for the conclusion of treaties of naturalization with foreign countries.”
“The statement is rich with context. President Arthur indicated that persons born in the U.S., subject to a foreign power, required naturalization. Additionally, he calls for the status of such persons to be clarified. Which class of persons subject to a foreign power does he refer to? Certainly not ambassadors and ministers, since their status has always been clear. And only four weeks earlier, in Nov. 1884, the status of Indians was declared in Elk v. Wilkins, so he’s not making reference to them. That leaves the third class of persons discussed on page 73 of The Slaughter-House Cases, “citizens or subjects of foreign States born within the United States”.
You basically suggest that President Arthur (whose father was not a US citizen at the time of his birth) was asking Congress to pass a law to make him ineligible.
I would suggest that that doesn’t make just a whole great deal of sense.
In fact, Presidents’ speeches are not normally geared towards finding a way to get Congress to impeach them.
They much more usually tend to address contemporary issues, that arise through contemporary events. Wouldn’t you agree with that?
And guess what kind of speech it was that President Chester A. Arthur gave on December 1, 1884?
It was the 1884 State of the Union Address.
Now what is a State of the Union Address all about?
It’s about the state of the Union. And because of that, it is ALL about what’s going on in the country at the time.
Furthermore, if you read Arthur’s State of the Union address, it’s abundantly clear that that’s exactly what his speech was about.
You yourself have glossed over the glaringly obvious context and reason for Arthur’s quoted comments in that speech.
Four weeks to the DAY before Arthur’s speech, the United States Supreme Court handed down a decision in a big, important citizenship case.
It was a decisive decision — 7 to 2 — but it was hardly a satisfactory one.
It was the decision in Elk v Wilkins.
Elk v Wilkins — Decisive, But Not Satisfactory
As I think you know, the case of Elk v Wilkins was brought on behalf of a Mr. John Elk, a resident of Omaha, Nebraska.
Mr. Elk had gone to register to vote in 1880, and had been turned away by the registrar, a Mr. Charles Wilkins.
And Mr. Wilkins gave as his reason that Mr. John Elk was an Indian, and therefore not a citizen of the United States, and therefore not entitled to vote.
So Mr. Elk took him to court.
The matter eventually reached the United States Supreme Court, where after months of consideration it was decided, 7 to 2, that Wilkins was right: as an American Indian, Mr. Elk was not a US citizen, and was not entitled to vote in the city council election.
This was counted true even though John Elk had completely separated himself from his tribe, and gone to live in Omaha, and was participating in the society of that town.
And the reason of the Court was that Elk had been born under a separate government — that of his tribe.
In other words, Elk had been born not subject to the jurisdiction of the United States. Therefore, Elk had not been born a citizen, and having not been born a citizen he could only become a US citizen by going through a naturalization process.
This meant that for any Indian who separated himself from his tribe, and went to participate in regular American society, he or she was — until and unless he or she went through the naturalization process for foreigners — literally a person without a country, a person with no nationality at all.
It was far from a satisfactory decision.
And that was the obvious reason for the comments in President Chester Arthur’s speech. That was why President Arthur told Congress that the nation’s law ought to “clearly define the status of persons born within the United States subject to a foreign power.”
Like virtually every other time this phrase is used, it had clear and primary reference to the Indians.
In fact, it is very plain, in reading the Congressional Debates on the Civil Rights Act of 1866 and on the 14th Amendment, exactly WHO the words “subject to the jurisdiction of the United States” and “not subject to any foreign power” INCLUDED, and who those words EXCLUDED.
Those who were “subject to the jurisdiction of the United States,” and who were “not subject to any foreign power” were the following:
* children born on US soil of people who were participating in United States society.
That’s it. There was no requirement of citizen parents. At all. So “subject to the jurisdiction of the United States” and “not subject to any foreign power” INCLUDED the children born on US soil of non-citizen parents, as long as they didn’t meet any of the exceptions listed below.
Those who were NOT “subject to the jurisdiction of the United States,” or who were “subject to any foreign power” were the following:
* children of foreign royalty and ambassadors
* children born on foreign ships
* children of members of occupying armies
* and children born into Indian and other indigenous American tribal governments.
And the biggest category of these, by far, was the American Indians and Eskimos, or indigenous Americans.
In fact, during the debates, whenever those words were used (“subject to a foreign power,” or “not subject to the jurisdiction of the United States”), it was clear who was mostly being referred to.
And that was what Chester A. Arthur was commenting on.
Because it just didn’t make sense to say to American Indians who wanted to take the huge step of separating themselves from their tribal governments and joining the mainstream of American society, “Fine, buddy. You can do that if you want. But you won’t be a citizen if you do. And if you show up to vote, we’ll turn you away. Oh, if you want to become a citizen, you can — using the same naturalization process we would apply to someone from Botswana. But even though you were born right here in the United States, you’ll be treated like a complete foreigner until you do.”
In spite of Arthur’s appeal, it would not be until 1924 — some 40 years later — that Congress would finally pass a law granting full US citizenship to all indigenous Americans.
Again, as for the rest of your brief, I’ve already heard every argument in it that’s significant.
You expressed a belief that I ought to become educated on the matter. I’ve already done that. I would suggest that YOU might actually like to become educated on the matter, by reading — in context — all of the original source materials referenced above.
But along the way, you might also want to get oriented by first going through, with a fine-toothed comb, the various writings mentioned, including the debate that ehancock and I had with Mario Apuzzo had on the subject over at Ballot-Access.org.
In that debate, 12 different specific claims are identified by Mario Apuzzo that are simply not true. And it’s not hard to verify that the claims are false. The sources are clear enough for you to do that.
That’s not a good track record, so I wouldn’t put a great deal of faith in Mr. Apuzzo’s writings.
Finally, you mention in your petition that the woman at the Carroll County Bar Association stated to you, “You are a nutcase and need to check yourself into a mental institution.”
I don’t agree. I don’t think you’re a nutcase at all. And I totally don’t think you need to check yourself into a mental institution.
This is particularly true if you have simply believed the law-and-history-twisting writings of Leo Donofrio and Mario Apuzzo without doing your own in-depth research. On the surface, until you actually check them out, their claims can sure sound pretty convincing.
The problem is this: You’re just 114 years too late to the party. And legally and historically speaking, when all of the facts are known you don’t have a leg to stand on. In the courts, you don’t have a snowball’s chance in Havana of prevailing. You are simply wasting your effort and time.
But don’t take my word for that. I would invite you to do the research for yourself.
I really don’t think there’s any other conclusion that a rational and fully informed person can come to.