Let me say this clearly: If you think it is ok to vote for someone who is not Constitutionally eligible for office – just because it is politically advantageous – you’re not a conservative. So quit calling yourself one.
I’ve gotten some strange responses from my post on why I will not vote for Marco Rubio as Vice President should Mitt Romney select him.
Many of these responses enforce an alarming anti-intellectual approach to issues surrounding the “Natural Born Citizen” issue, and I feel at times I’m dealing with liberals who are inconvenienced by cold hard facts that infringe on their fallacious feelings. It saddens me and pisses me off all at the same time. Besides the comments in that post that make no sense (and show that there are conservatives who have no integrity,) I have gotten private emails/direct tweets like this:
PolitiJim, you are wrong about the "two american citizen parent" rule and the courts have held so, most recently in GA. Please review & retract.
This is supposedly a conservative. Supposedly someone who believes in the Constitution and rule of law.
It is first of all amazing that people don’t argue FACTS when trying to argue their case. I’ve laid out a pretty clear case of documented analysis from both the Founders and the Supreme Court rulings on the matter with links to much more detailed analysis. But I see that is not enough.
The canard that the “courts have held so,” denies three things. First is the notion that courts get it right (ie, Roe v. Wade and Kimberlin). Secondly, while there ARE opposing legal opinions (almost entirely liberal), one must have a huge set of gonads to think Judicial Watch would take this on if it weren’t a clear argument. However using the conclusions of others is also only “information cascade” or “confirmation bias” at work. It shouldn’t be a hard and fast foundation to base any firm opinion on as a conservative, and it gets us into a damn good bit of trouble. “Well, Rush says so” or “George Will says so” is what gets us into these messes. To a lesser extent than Drudge or Coulter, these voices have turned out to have huge lapses of their own intellectual integrity (remember Will calling Gingrich a “Marxist”?) or clear bias. I am not saying they are evil or we shouldn’t listen to them or read their latest opinion. I am saying that on issues where there are strongly held beliefs, at least conservatives – if not Americans – had better quit being lazy and do the homework themselves.
The last bit of “information cascade” evidence – that this isn’t “settled” by the Georgia court - is that 94 Georgia legislatures still believe it is an issue and have sponsored a bill requiring candidates to prove their eligibility. There ARE numerous brilliant conservative legal minds still putting their reputation, time and money in this battle – suggesting it is far from settled and NOT some “conspiracy theory.” Conservatives who want to claim as much might as well be 9/11 Truthers.
Which brings us to the third denial. The facts at hand. The original finding by Georgia Judge Malihi is ridiculous. The Liberty Legal Foundation puts it this way:
By now many of you have probably heard that the Georgia court ruled that Obama is a natural born citizen. (Link to opinion) More importantly it ruled that any person born on U.S. soil is a natural born citizen. According to the Georgia court, a woman from any country can visit the U.S. for one day, give birth, take the baby back to any country to be raised under any culture, and that baby can return as an adult, live here for 14 years and run for President. The end result of this ruling is outrageous. It runs contrary to common sense as well as to established law.
So, what happened in Georgia? The court determined that a clear definition of natural born citizen from Supreme Court precedent was overturned by dicta in another Supreme Court case. Precedent is any statement by the court that is pivotal to reaching the court’s ruling. Dicta is the opposite of precedent. Dicta is a statement by the court about matters that are not pivotal to reaching its ruling. Dicta is persuasive, but it cannot overturn precedent.
In other words, the Georgia court violated a basic rule of legal interpretation by ruling as it did. But wait, there’s more! The Georgia court also violated rules of Constitutional interpretation that have been around since the earliest Supreme Court. Our first Chief Justice explained that no part of the Constitution should be interpreted in a way that leaves any other part of the Constitution without independent meaning. By ruling that anyone born on U.S. soil can run for President the Georgia court concluded that the 14th Amendment was intended to alter article II of the Constitution. Such an interpretation is 180 degrees in opposite to Chief Justice Marshall’s explanation of how to interpret the Constitution.
But WAIT, there’s more! In order to reach this conclusion the Georgia court ALSO had to disregard yet another part of the holding from the Minor v. Happersett Supreme Court ruling. Even if you ignore the rules of Constitutional construction and the rule that dicta can’t overturn precedent, even if you agree with the Georgia court that the definition of natural born citizen in the Minor decision was dicta, you still can’t reach the Georgia court’s ruling. You see, the Minor Court ALSO explicitly ruled that the 14th Amendment didn’t create any new privileges and immunities. So, if a person couldn’t run for President before the 14th Amendment, they couldn’t run for President after the 14th Amendment. This means that the Minor Court explicitly ruled that the 14th amendment didn’t alter the definition of natural born citizen under article II of the Constitution. Yet the Georgia court ignored this Supreme Court ruling as well.
The Georgia court was aware of all of these arguments because these arguments were made at the January 26 hearing and they were included in our written brief after the hearing. Yet the Georgia court’s ruling only addresses one of these three arguments and poorly at that.
The one point of good news from this ruling is that we have FINALLY gotten a court to rule on the merits of our argument.
And exhaustive scholarly analysis of these problems can be found here.
This case is headed to the Supreme Court, as will the Judicial Watch case in Florida and California, regardless of the upcoming ruling. If you care to watch the progression of arguments on the Georgia case you can bookmark it here.
It is sheer ignorance for anyone to take a lower court ruling as “proof” of any issue. Do you know how many times courts upheld slavery as “constitutional” including the famous Dred Scott decision? Where there are humans there is error. And even those less than 100 years from the crafting of our Constitution were unwilling to read the overwhelming documentation that controverted a pro-slavery position by our Founders. (It was more or less obscured to get the Southern ratification, leaving each side to interpret whether “all men” included slaves or not.) Should abolitionists have given up their fight simply because some ignorant judges – even Supreme ones – ignored history, science and law? When THEY KNEW that “negroes” were fully human and “men,” should they suspend their evidence because even the Supreme Court held otherwise? Of course not.
All of us have made the error of jumping to conclusion without facts. This blog has tried to go WHEREVER the facts took us, whether it fit our preconceived ideas or biases. (I was ready to endorse Santorum until I actually STUDIED his record of obscene lobbying influence, habitual lying and betrayal of the very pro-life and pro-conservative causes his campaign and supporters were trying to pass off as fact. I also publicly disagreed with Newt Gingrich where I felt he was in error without trying to gloss over his problems.)
I’ll never forget the Ben Howe admitted his ignorance and dismissal of Palin’s valiant record in Alaska or of her conservative policy “gravitas.” After watching the UNDEFEDATED and doing more research, he chided ALL conservatives who didn’t get the facts themselves and let this woman fight the overwhelming tsunami of smear launched at her not just by liberals – but by Romney and the GOP Establishment. He is one of my new conservative journalistic heroes for letting facts dictate his opinion regardless of how others perceive it.
Here are the facts with the Iranian born, Clinton appointee, Georgia Administrative Judge Michael Malihi’s Barack Obama eligibility decision:
- Georgia election law O.C.G.A. 21-2-5(a) demands that every candidate meet constitutional requirements and Barack Obama did not present a single piece of evidence to support his eligibility – not even the forged birth certificate.
- Malihi originally told the plaintiff's attorney that he would make a normal “summary judgment” against Obama when neither Obama or his lawyers didn’t show. (A court can ONLY rule on the evidence presented against it. Just like traffic court or any other court, a judge can ONLY rule on the evidence set before it – NOT on the real facts of the case that are not presented.)
- In the entire course of American judicial history, a judge has never found FOR a defendant who did not show up for court.
- He cited an Indiana case that never had a Federal ruling - Arkeny [sic] v. Daniels - and has no binding authority on a Federal issue. (States do not have the power to naturalize citizens.)
- The defense never even used the case of Arkeny – meaning that the judge brought evidence into his court OUTSIDE of what was presented – a clear case of judicial misconduct.
- Ankeny ITSELF does not even discuss what the Founders’ and Framers” original intent was in including the “natural born” Citizen clause in the Constitution, nor does it IN ITSELF provide any historical or legal support in it’s finding.
- Ankeny mistakenly concluded that Wong Kim Ark ruled Wong Kim Ark to be a “natural born Citizen” rather than a “citizen of the United States.” Wong Kim Ark did no such thing.
- There were multiple other problems with the invalid Indiana case that has no bearing on Federal or Constitutional law and can be read here.
- He ignored ACTUAL US Supreme Court rulings and the early naturalization statutes passed by our early Congresses that included members who actually WROTE and passed the Constitution. Not only did he not bother to mention them in his opinion, he never explained how or why they did not apply despite being presented by the plaintiffs in the hearing. (The U.S. Supreme Court in Minor v. Happersett (1875) already had told us that there was no doubt as to who could be a “natural born Citizen.”)
- Judge Malihi finds that Obama “became a citizen at birth and is a natural born citizen,” despite zero evidence presented to him, nor any explanation of how both (or either) are justified by evidence.
It is worth noting that we STILL can not find even a complete bio on this judge despite the fact he has been one since 1995. Much like Obama – the guy seems to have appeared out of vapor. It is ridiculous to think he was a “plant” preparing for the remote possibility Obama would run for President all the way back to 1995, especially since he openly was ready to issue a summary judgment against him. But there are a number of other inexplicable and illegal actions by Judge Michael Malihi. Liberty Legal Foundation now reveals:
- Malihi’s Georgia Court refuses to forward LLF’s Motion for Contempt against Obama to the Georgia Superior Court despite state law providing the Court no such discretion.
- The Superior Court refused to respond to LLF’s letters on the matter, or demand the Malihi court forward the Motion.
- The Superior Court Clerk initially refused to file LLF’s Appeal of Malihi’s ruling, relenting only after 48 solid hours of legal and procedural “education” on the part of Irion.
- The Superior Court Clerk refused to file LLF’s Motion for Preliminary Injunction because a $1 filing fee had not been included. After HAND DELIVERY of $1, the Clerk then SAT ON the Motion for 10 days, finally claiming the $1 fee had been hand delivered to the “wrong staffer.” The Motion had to be completely re-filed. The Court itself refused to admonish the clerk.
And here is the clincher:
- Obama filed a Motion to Dismiss LLF’s Appeal of the Malihi ruling and the Motion was FILED IMMEDIATELY by the Superior Court Clerk. Obviously no problem in the Clerk’s office with Mr. Obama’s paper work.
- THREE DAYS after Obama’s Motion to Dismiss was filed, the Court informed Attorney Van Irion that he had LESS THAN 1 DAY to file an Opposition to that Motion; thoroughly improper behavior on the part of the Court.
- Late that SAME DAY, the Chief Judge of the Superior Court denied Irion’s motion to be admitted as a visiting attorney (Irion practices in Tennessee) in spite of his impeccable reputation and the fact that his Georgia sponsor is a member of the Georgia State Legislature who has practiced before the Court! The Court had deliberately held up this particular decision for 2 weeks, effectively preventing LLF from filing the Opposition the Court had RULED only 6 hours earlier that LLF must file on that day! All of this represents unheard of behavior on the part of a court.
- Finally, just 90 minutes after plaintiff David Weldon personally filed the Opposition–as the Court had prevented Irion and LLF from doing so–the Chief Judge issued a 3 page Opinion granting Obama’s Motion to Dismiss the LLF Appeal!
Incredibly, neither Judge Malihi nor the Secretary of State sent the Weldon v Obama case record to the Superior Court for review until AFTER the Court had ruled in Obama’s favor! That means the Chief Judge agreed to Obama’s Motion to Dismiss an Appeal of a case the Judge NEVER READ!! This is the extent to which judicial corruption has replaced judicial review in the State of Georgia.
There is some credible circumstantial evidence of a quid pro quo by the State of Georgia and the Obama Administration. Only two days after the Secretary of State decided to enforce the criminally corrupt findings of the Malihi court, Georgia received an $8.3 Billion loan for two nuclear plants over the scathing dissent of the Nuclear Commissions Chairman. THIS IS THE FIRST LICENSE GRANTED TO ANY STATE SINCE THE THREE MILE ISLAND DISASTER in 1978. Furthermore, all of Obama’s environmental buddies objected (many of the same who objected to the Keystone pipeline), and it came directly after the Japan nuclear meltdown. Hardly fitting with the way the Obama Administration has dealt with all other issues of energy and the environment. But again, just as circumstantial as Obama giving money to a Soros-owned oil company to drill outside of the US why shutting down the Gulf offshore oil industry.
The real issue here again is whether conservatives will start investigating their positions based on more than popular conservative opinion – and if they will ENFORCE integrity of the rule of law.
Liberty Legal Foundation’s Van Irion writes,
“The Founding Fathers understood that when dishonorable people begin to take high office, the system of government they set into motion would begin to fail. Unfortunately America’s judicial system is proving this principle.”
If conservatives cave to expedience by letting Barack Obama, Marco Rubio, Bobby Jindal or (possibly) Rick Santorum, float by on this – they are actively participating in the destruction of the US Constitution and this country. Whether that fits their preconceived bias or desires for who they want in office or not.
In answer to my conservative friend, I’ll retract my determination to write in Palin over any non-Natural Born US Citizen like Rubio or Jindal when you pry it out of my cold dead hands in a Chicago cemetery.
UPDATE 4:25 pm 6-24-12
More embarrassment to those who call themselves conservatives. Here was the response to my very lengthy, detailed and documented argument as to why the Georgia Malihi judgment wasn’t definitive:
Jim, I have neither the time not the inclination to get into a lengthy debate about this with you when you've obviously set your opinion
Just like a liberal, instead of being willing to argue the MERITS and FACTS of the issue, they feign offense and run home without defending their position. Not ONE substantive insight was offered. WTH?
It is embarrassment and it has appeared in some form or other from people like Eric Erickson at RedState who never did retract his slander of Jamie Radtke, to Michelle Malkin who refused to correct her proven false accusations against Newt Gingrich.
Just as the “GOP” brand the Contract With America was tarnished with excessive spending (favorable approvals dropping from 60% to low 30%), we can’t let the “conservative” brand be diminished by not debating SPECIFICS on our arguments.
In this case, either “Natural Born Citizen” means a child born on American soil to 2 US citizen parents or not. There isn’t a “gray” area of opinion. Unless you want to become Bill Clinton and argue with the definition of “is” is.
No surprise our own army has disingenuous moral relativists . Lord give me strength to bear with them rather than just wanting to take ‘em out and shoot ‘em (as they say metaphorically in Texas.)